OR. IAIN TORRANCE
DEPT OF THEOLOGY
UNIVERSITY Of ABERDEEN
ABERDEEN AB9 2UB
SCOTLAND. U.K.
Digitized by the Internet Archive
in 2012 with funding from
Princeton Theological Seminary Library
http://archive.org/details/lexrexorlawprincOOruth
LEX, REX,
THE LAW AND THE PRINCE
A DISPUTE FOR
THE JUST PREROGATIVE OF KING AND PEOPLE:
CONTAINING
THE REASONS AND CAUSES OF THE MOST NECESSARY DEFENSIVE WARS
OF THE KINGDOM OF SCOTLAND,
AND OF THEIR
EXPEDITION FOR THE AID AND HELP OF THEIR DEAR BRETHREN
OF ENGLAND;
IN WHICH THEIR INNOCENCT IS ASSERTED, AND A FULL ANSWER IS GIVEN TO A SEDITIOUS PAMPHLET,
ENTITULED,
" SACRO-SANCTA REGUM MAJESTAS,"
THE SACRED AND ROYAL PREROGATIVE OF CHRISTIAN KINGS J
UNDER THE NAME OF J. A., BUT PENNED BY
JOHN MAXWELL, THE EXCOMMUNICATE POPISH PRELATE ;
WITH A SCRIPTURAL CONFUTATION OF THE RUINOUS GROUNDS OF W. BARCLAY, H. GROTIUS, H. ARNISjEUS,
ANT. DE DOMI. POPISH BISHOP OF SPALATO, AND OF OTHER LATE ANTI-MAGISTRATICAL
ROYALISTS, AS THE AUTHOR OF OSSORIANUM, DR FERNE, E. SYMMONS,
THE DOCTORS OF ABERDEEN, ETC.
IN FORTY-FOUR QUESTIONS.
BY THE
REV. SAMUEL,. RUTHERFORD.
SOMETIME PROFESSOR OF DIV>^»Y fx T%S^ff\ERSITY OF ST. ANDREWS.
But if you shall still do wickedly, ye shall bertfonsSiWd, botll ye and your king." — I Sam. xii. 25.
EDINBURGH:
ROBERT OGLE AND OLIVER & BOYD.
M. OGLE & SON AND WILLIAM COLLINS, GLASGOW.
D. DEWAR, PERTH. A. BROWN & CO., ABERDEEN. W. M'COMB, BELFAST.
HAMILTON, ADAMS & CO., AND JAMES NISBET & CO., LONDON.
MDCCCXLIII.
[London : Printed for John Field, and are to be sold at his house upon Addle-hill,
near Baynards-Casth. Octob. 7, 1644.]
EDINBURGH:
REPRINTED BY A. MURRAY, MILNE SQUAI
PREFACE.
In issuing a new edition of Lex, Rex, it has been considered advisable to print along
with it Buchanan's De Jure Regni apud Scotos. This work, on its first appearance, gave
great offence to the government of the time, as containing principles which were opposed
to the established monarchy; and was consequently condemned by the parliament of
1584. In 1664 there was a proclamation issued against any translation of it being in the
possession of any person. " This proclamation," says Wodrow, " is every way singular;
for any thing that appears, this translation of that known piece of the celebrated Bu-
chanan was not printed, but only, it seems, handed about in manuscript ; while, in the
meantime, thousands of copies of it in the Latin original were in everybody's hands.
It had been more just to have ordered an answer to have been formed to the solid argu-
ments in that dialogue against tyranny and arbitrary government." Again, in 1688, an-
other proclamation was published by the Council, prohibiting every person from selling,
dispersing, or lending such books as Buchanan's " De Jure Regni apud Scotos,'n " Lex,
Rex," " Jus Popidi Nciphtali," along with some others which were considered as having
a treasonable tendency. The same principles are advocated in Lex, Rex, that are held
by Buchanan : both works are equally opposed to that absolute and passive obedience
required from the subject to a royal prerogative. A modern writer* well remarks, " That
resistance to lawful authority — even when that authority so called has, in point of fact,
set at nought all law — is in no instance to be vindicated, will be held by those only who
are the devotees of arbitrary power and passive obedience. The principles of Mr Ruther-
ford's Lex, Rex, however obnoxious they may be to such men, arc substantially the prin-
ciples on which all government is founded, and without which the civil magistrate would
become a curse rather than a blessing to a country. They are the very principles which
lie at the basis of the British constitution, and by whose tenure the house of Bruns-
wick does at this very moment hold possession of the throne of these realms."
* ReT. Robert Burns, D.D., in his Preliminary Dissertation to Wodrow's Church History.
CONTENTS
Page
Sketch of the Life of Rutherford, ..... xv.
Author's Preface, . ...... xxi.
QUESTION I.
Whether government be by a divine law, ..... 1
How government is from God.- — Civil power, in the root, immediately from God.
QUESTION II.
"Whether or no government be warranted by the law of nature, ... 1
Civil society natural in radice, in the root, voluntary in modo, in the manner. — Power of govern-
ment, and power of government by sncli and such magistrates, different. — Civil subjection not
formally from nature's laws. — Our consent to laws penal, not antecedently natural. — Government
by such rulers, a secondary law of nature. — Family government and politic different. — Govern-
ment by rulers a secondary law of nature ; family government and civil different. — Civil govern-
ment, by consequent, natural.
QUESTION III.
Whether royal power and definite forms of government be from God, . . 3
That kings are from God, understood in a fourfold sense. — The royal power hath warrant from
divine institution. — The three forms of government not different in specie and nature. — How every
form is from God. — How government is an ordinance of man, 1 Pet. ii. 13.
QUESTION IV.
Whether or no the king be only and immediately from God. and not from the people, 6
How the king is from God, how from the people. — Roya.1 power three ways in the people. — How
royal power is radically in the people. — The people maketh the king. — How any form of govern-
ment is from God. — How government is a human ordinance, 1 Pet. ii. 3. — The people create the
king. — Making a king, and choosing a king, not to be distinguished. — David not a king formally,
because anointed by God.
QUESTION V.
Whether or no the P. Prelate proveth that sovereignty is immediately from God, not
from the people, ........ 9
Kings made by the people, though the office, in abstracto, were immediately from God. — The people
have a real action, more than approbation, in making a king. — Kinging of a person ascribed to the
people. — Kings in a special manner are from God, but it followeth not ; therefore, not from the
people. — The place, Prov. viii. 15, proveth not bnt kings are made by the people. — Nebuchad-
nezzar, and other heathen kings, had no just title before God to the kingdom of Judah, and divers
other subdued kingdoms.
CONTEXTS.
QUESTION VI.
Page
Whether or no the king be so allenarly from both, in regard of sovereignty and desig-
nation of his person, as he is noway from the people, but only by mere approba-
tion, ......... 16
The forms of government not from God by an act of naked providence, but by his approving will.
— Sovereignty not from the people by sole approbation.- — Though God have peculiar acts of pro-
vidence in creating kings, it followeth not hence that the people maketh not kings. — The P. Pre-
late exponeth prophecies true only of David, Solomon, and Jesus Christ, as true of profane hea-
then kings. — The P. Prelate maketh all the heathen kings to be princes, anointed with the holy
oil of saving grace.
QUESTION VII.
Whether the P. Prelate conclude that neither constitution nor designation of kings is
from the people, ........ 22
The excellency of kings maketh them not of God's only constitution and designation. — How sove-
reignty is in the people, how not. — A community doth not surrender their right and liberty to
their rulers, so much as their power active to do, and passive to suffer, violence. — God's loosing of
the bonds of kings, by the mediation of the people's despising him, proveth against the P. Prelate
that the Lord taketh away, and giveth royal majesty mediately, not immediately. — The subordina-
tion of people to kings and rulers, both natural and voluntary ; the subordination of beasts and
creatures to man merely natural. — The place, Gen. ix. 5, " He that sheddeth man's blood," &c.
discussed.
QUESTION VIII.
Whether or no the P. Prelate proveth, by force of reason, that the people cannot be
capable of any power of government, ..... 28
In any community there is an active and passive power to government. — Popular government is not
that wherein the whole people are governors. — People by nature are equally indifferent to all
the three governments, and are not under any one by nature. — The P. Prelate denieth the Pope
his father to be the antichrist. — The bad success of kings chosen by people proveth nothing
against us, because kings chosen by God had bad success through their own wickedness. — The
P° Prelate condemneth king Charl.es' ratifying (Pari. 2, an. 1611) the whole proceedings of Scot-
land in this present reformation>-That there be any supreme judges is an eminent act of divine
providence, which hindereth not but that the king is made by the people.— The people not pa-
tients in making a king, as is water in the sacrament of baptism, in the act of production of
grace.
QUESTION IX.
Whether or no sovereignty is so in and from the people, that they may resume their
power in time of extreme necessity, . ... 33
How the people is the subject of sovereignty— Xo tyrannical power is from God.— People cannct
alienate the natural power of self-defence.— The power of parliaments.— The Parliament hath
more power than the king. — Judges and kings differ.— People may resume their power, not be-
cause they are infallible, but because they cannot so readily destroy themselves as one man may
do. — That' the sanhedrim punished not David, Bathsheba, Joab, is but a fact, not a law. — There is
a subordination of creatures natural, government must be natural ; and yet this or that form is
voluntary.
QUESTION X.
Whether or not royal birth be equivalent to divine unction,
Impunged by eight arguments.— Royalty not transmitted from father to son.— A family may be
chosen to a crown as a single person is chosen, but the tie is conditional in both. — The throne, by
special promise, made to David and bis seed, by God, (Psal. lxxxix.,) no ground to make birth, in
foro Dei, a just title to the crown.— A title by conquest to a throne must be unlawful, if birth be
"God's lawful title.— Royalists who hold conquest to be a just title to the crown, teach manifest
treason against king Charles and his royal heirs.— Only, bona fortune, not honour or royalty, pro-
39
Page
perly transmitable from father to son. — Violent conquest cannot regulate the consciences of people
to submit to a conqueror as their lawful king. — Naked birth is inferior to that very divine unction,
that made no man a king without the people's election.— If a kingdom were by birth the king might
sell it. — The crown is the patrimony of the kingdom, not of him who is king, or of his father. — .
Birth a typical designment to the crown in Israel. — The choice of a family to the crown, resolveth
upon the'free election of the people as on the fountain cause. — Election of a family to the crown
lawful.
QUESTION XI.
Whether or no he be more principally a king who is a king by birth, or he who is a
king by the free election of the people, . . . . . 45
The elective king cometh nearer to the first king. (Deut. xvii.)— If the people may limit the king,
they give him the power. — A community have not power formally to punish themselves. — The
hereditary and the elective prince in divers considerations, better or worse, each one than another.
QUESTION XII.
Whether or no a kingdom may lawfully be purchased by the sole title of conquest, 48
A Twofold right of conquest. — Conquest turned in an after-consent of the people, becometh a just
title. — Conquest not a signification to us of God's approving will. — Mere violent domineering con-
trary to the acts of governing. — Violence hath nothing in it of a king. — A bloody conqueror not
a blessing, per se, as a king is. — Strength as prevailing is not law or reason. — Fathers cannot dis-
pose of the liberty of posterity not born. — A father, as a father, hath not power of life and death.
Israel and David's conquests of the Canaanites, Edomites, Ammonites not lawful, because con-
quest, but upon a divine title of God's promise.
QUESTION XIII.
Whether or no royal dignity have its spring from nature, and how it is true " Every
man is born free," and how servitude is contrary to nature, . . 50
Seven sorts of superiority and inferiority. — Power of life and death from a positive law. — A dominion
antecedent and consequent. — Kings and subjects no natural order. — A man is born, conseqwnUr ,
in politic relation. — Slavery not natural from four reasons. — Every man born free in regard of
civil subjection ("not in regard of natural, such as of children and wife, to parents and husband)
proved by seven arguments. — Politic government how necessary, how natural. — That parents
6hould enslave their children not natural.
QUESTION XIV.
Whether or no the people make a person their king conditionally or absolutely ; and
whether the king be tyed by any such covenant, .... 54
The king under a natural, but no civil obligation to the people, as royalists teach.— The covenant
civilly tyeth the king proved by Scriptures and reasons, by eight arguments.— If the condition,
without which one of the parties would never have entered into covenant, be not performed, that
party is loosed from the covenant. — The people and princes are obliged in their places for justice
and religion, no less than the king. — In so far as the king presseth a false religion on the people.
eatenus, in so far they are understood not to have a king. — The covenant giveth a mutual co-ac- '
tive power to king and people to compel each other, though there be not one on earth higher than
both to compel each of them. — The covenant bindeth the king as king, not as he is a man onlv. —
One or two tyrannous acts deprive not the king of his royal right.— Though there were no posi-
tive written covenant (which yet we grant not) yet there is a natural, tacit, implicit covenant tying
the king, by the nature of his office.— If the king be made king absolutely, it is contrary to Scrip-
ture and the nature of his office. — The people given to the king as a pledge, not as if they became
his own to dispose of at his absolute will. — The king could not buy, sell, borrow, if no covenant
should tie him to men. — The covenant sworn by Judah (2 Chron. xv.) tyed the king.
QUESTION XV.
Whether the king be univocally, or only analogically and by proportion, a father, 62
Adam not king of'the whole earth because a father.— The king a father metaphorically and impro-
perly, proved by eight arguments.
QUESTION XVI.
Page
Whether or no a despotical or masterly dominion agree to the king, because he is king, 64
The king hath no masterly dominion over the subjects as if they were his servants, proved by four
arguments. — The king not over men as reasonable creatures to domineer. — The king cannot give
away his kingdom or his people as if they were his proper goods. — A violent surrender of liberty
tyeth not. — A surrender of ignorance is in so far involuntarily as it oblige not. — The goods of the
subjects not the king's, proved by eight arguments. — All the goods of the subjects are the king's
in a fourfold sense.
QUESTION XVII.
Whether or no the prince have properly the fiduciary or ministerial power of a tutor,
husband, patron, minister, head, master of a family, not of a lord or dominator, 69
The king a tutor rather than a father as these are distinguished. — A free community not properly
and in all respects a minor and pupil. — The king's power not properly marital and husbandly. —
The king a patron and servant. — The royal power only from God, immediatione simplicis consti-
tution^, et solum solitudine causae prima;, but not immediatione applications dignitatis ad perso-
nam.— The king the servant of the people both objectively and subjectively. — The Lord and the
people by one and the same act according to the physical relation maketh the king. — The king
head of the people metaphorically only, not essentially, not univocally, by six arguments. — His
power fiduciary only.
QUESTION XVIII.
What is the law or manner of the king (1 Sam. viii. 9, 11) discussed fully, . 72
The power and the office badly differenced by Barclay. — What is ^l^^pl IlDJi^Q the manner of
the king, by the harmony of interpreters, ancient and modern, 'piotestants and papists. — Crying
out (1 Sam. viii.) not necessarily a remedy of tyranny, nor a praying with faith and patience.— Re-
sisting of kings that are tyrannous, and patience, not inconsistent. — The law of the king not a per-
missive law, as was the law of divorcement. — The law of the king (1 Sam. xii. 23, 24) not a law of
tyranny.
QUESTION XIX.
Whether or no the king be in dignity and power above the people, . . 77
In what consideration the king is above the people, and the people above the king. — A mean, as a
mean, iuferior to the end, how it is true — The king inferior to the people. — The church, because J
the church, is of more excellency than the king, because king. — The people being those to whom
the king is given, worthier than the gift. — And the people immortal, the king mortal. — The king
a mean only.not both the efficient, or author of the kingdom, and a mean ; two necessary distinc-
tions of a mean. — If sin had never been, there should have been no king. — The king is to give his
life for his people. — The consistent cause more excellent than the effect — The people than the
king. — Impossible people can limit royal power, but they must give royal power also. — The peo-
ple have an action in making a king, proved by four arguments. — Though it were granted that
God immediately made kings, yet it is no consequent, God only, and not the people, can unmake
him. — The people appointing a king over themselves, retain the fountain-power of making a king.
— The mean inferior to the end, and the king, as a king, is a mean. — The king, as a mean, and
also as a man, inferior to the people. — To swear non-self-preservation, and to swear self-murder,
all one. — The people cannot make away their power, 1. Their whole power, nor 2. Irrevocably to
the king. — The people may resume the power they give to the commissioners of parliament, when
it is abused. — The tables in Scotland lawful, when the ordinary judicatures are corrupt. — Quod
efficit tale id ipsum magis talc discussed, the fountain-power in the people derived only in the king.
— The king is a fiduciary, a life-renter, not a lord or heritor. — How sovereignty is in the people.
— Power of life and death, how in a community. — A community void of rulers, is yet, and may
be a politic body. — Judges gods analogically.
QUESTION XX.
Whether inferior judges be essentially the immediate vicegerents of God, as kings, not
differing in essence and nature from kings, .... 88
Inferior judges the immediate vicars of God, no less than the king.— -The consciences of inferior
judges, immediately subordinate to God, not to the king, either mediately or immediately. — How
Page
the inferior judge is the deputy of the king. — He may put to death murderers, as having God's
sword committed to him, no less than the king, even though the king command the contrary; for
he is not to execute judgment, and to relieve the oppressed conditionally, if a mortal king give
him leave ; but whether the king will or no, he is to obey the King of kings. — Inferior judges are
ministri regni, non ministri regis. — The king doth not make judges as he is a man, by an act of
private good-will ; but as he is a king by an act of royal justice, and by a power that he hath from
the people, who made himself a supreme judge.— The king's making inferior judges hindereth
not, but they are as essentially judges as the king who maketh them, not by fountain-power, but
power borrowed from the people. — The judges in Israel and the kings differ not essentially. Aris-
tocracy as natural as monarchy, and as warrantable. — Inferior judges depend some way on the
king in fieri, but not in facto esse. — The parliament not judges by derivation from the king. — The
king cannot make or unmake judges. — No heritable judges. — Inferior judges more necessary than
a king.
QUESTION XXI.
What power the people and states of parliament hath over the king and in the state, 95
The elders appointed by God to be judges. — Parliaments may convene and judge without the king.
— Parliaments are essentially judges, and so their consciences neither dependeth on the king,
quoad specificationem, that is, that they should give out this sentence, not that, nee quoad exerci-
tium, that they should not in the morning execute judgment.— Unjust judging, and no judging at
all, are sins in the states. — The parliament co-ordinate judges with the king, not advisers only ; by
eleven arguments. — Inferior judges not the king's messengers or legates, but public governors. —
The Jews' monarchy mixed.— A power executive of laws more in the king, a power legislative
more in the parliament.
QUESTION XXII.
Whether the power of the king, as king, be absolute, or dependent and limited by
God's first mould and pattern of a king, ..... 99
The royalists make the king as absolute as the great Turk. — The king not absolute in his power,
proved by nine arguments. — Why the king is a living law. — Power to do ill not from God. — Roy-
alists say power to do ill is not from God, but power to do ill, as punishable by man, is from God.
— A king, actu primo, is a plague, and the people slaves, if the king, by God's institution, be abso-
lute.— Absoluteness of royalty against justice, peace, reason, and law.— Against the king's relation
of a brother. — A damsel forced may resist the king. — The goodness of an absolute prince hinder-
eth not but he is actu primo a tyrant.
QUESTION XXIII.
Whether the king hath a prerogative royal above law, . . . 106
Prerogative taken two ways.— Prerogative above laws a garland proper to infinite majesty. — A three-
fold dispensation, 1. Of power ; 2. Of justice; 3. Of grace. — Acts of mere grace may be acts of
blood. — An oath to the king of Babylon tyed not the people of Judah to all that absolute power
could command.— The absolute prince is as absolute in acts of cruelty, as in acts of grace. — Ser-
vants are not (1 Pet. ii. 18, 19) interdicted of self-defence. — The parliament materially only, not
formally, hath the king for their lord. — Reason not a sufficient restraint to keep a prince from
acts of tyranny. — Princes have sufficient power to do good, though they have not absolute to do
evil. — A power to shed innocent blood can be no part of any royal power given of God. — The
king, because he is a public person, wanteth many privileges that subjects have.
QUESTION XXIV.
What relation the king hath to the law, . . . . . 113
Human laws considered as reasonable, or as penal. — The king alone hath not a nemothetic power. —
Whether the king be above parliaments as their judge. — Subordination of the kiug to the parlia-
ment and co-ordination both consistent. — Each one of the three governments hath somewhat from
each other, and they cannot any one of them be in its prevalency conveniently without the mix-
ture of the other two. — The king as a king cannot err, as he erreth in so far, he is not the remedy
of oppression intended by God and nature. — In the court of necessity the people may judge the
king. — Human laws not so obscure as tyranny is visible and discernible. — It is more reqnisite
that the whole people, church, and religion be secured than one man. — If there be any restraint
by law on the king it must be physical, for a moral restraint is upon all men. — To swear to an ab-
solute prince as absolute, is an oath eatenus, in so far unlawful, and not obligatory. •
b
QUESTION XXV.
Page
Whether the supreme law, the safety of the people, be above the king, . 119
The safety of the people to be preferred to the king, for the king is not to seek himself, but the
good of the people.— Royalists make no kings but tyrants.— How the safety of the king is the
safety of the people.— A king, for the safety 'of the people, may break through the letter and
paper of the law. — The king's prerogative above law and reason, not comparable to the blood that
has been shed in Ireland and England. — The power of dictators prove not a prerogative above law.
QUESTION XXVI.
Whether the king be above the law, . . . . . .125
The law above the king in fonr things, 1. in constitution ; 2. direction ; 3. limitation ; 4. co-action.—
In what sense the king may do all things. — The king under the morality of laws ; under funda-
mental laws, not under punishment to be inflicted by himself, nor because of the eminency of his
place, but for the physical incongruity thereof. — If, and how, the king may punish himself. — That
the king transgressing in a heinous manner, is under the co-action of law, proved by seven argu-
ments.— The coronation of a king, who is supposed to be a just prince, yet proveth after a tyrant,
is conditional and from ignorance, and so involuntary, and in so far not obligatory in law. — Roy-
alists confess a tyrant in exercise may be dethroned. — How the people is the scat of the power
of sovereignty.— The place, Psal. li., " Against thee only have I sinned," &c. discussed. — Israel's
not rising in arms against Pharaoh examined. — And Judah's not working their own deliver-
ance under Cyrus.— A covenant without the king's concurrence lawful.
QUESTION XXVII.
Whether or no the king be the sole, supreme, and final interpreter of the law, . 136
He is not the supreme and peremptory interpreter.— Nor is his will the sense of the law.— Nor is
he the sole and only judicial interpreter of the law.
QUESTION XXVIII.
Whether or no wars raised by the estates and subjects for their own just defence
against the king's bloody emissaries be lawful, . . . .139
The state of the question. — If kings be absolute, a superior judge may punish an inferior judge, not
as a judge but an erring man. — By divine institution all covenants to restrain their power must be
unlawful. — Resistance in some cases lawful. — Six arguments for the lawfulness of defensive wars.
—Many others follow.
QUESTION XXIX.
Whether, in the case of defensive wars, the distinction of the person of the king as a
man, who may and can commit hostile acts of tyranny against his subjects, and of
the office and royal power that he hath from God and the people, can have place, 143
The king's person in concrete, and his office in abstract*), or, which is all one, the king using his
power lawfully to be distinguished (Rom. xiii). — To command unjustly maketh not a higher power.
■ — The person may be resisted and yet the office cannot be resisted, proved by fourteen argu-
ments.— Contrary objections of royalists and of the P. Prelate answered. — What we mean by the
person and office in abstracto in this dispute ; we do not exclude the person in concrete altogether,
but only the person as abusing his power ; we may kill a person as a man, and love him as a son,
father, wife, according to Scripture. — We obey the king for the law, and not the law for the king.
— The losing of habitual and actual royalty different.— John xix. 10, Pilate's power of crucifying
Christ no law-power given to him of God, is proved against royalists, by six arguments.
QUESTION XXX.
Whether or no passive obedience be a mean to which we are subjected in conscience by
virtue of a divine commandment ; and what a mean resistance is. That flying is
resistance, ......... 152
The place, 1 Pet. ii. 18, discussed. — Patient bearing of injuries and resistance of injuries compatible
in one and the same subject. — Christ's non-resistance hath many things rare and extraordinary,
Page
and is no leading rule to us. — Suffering is either commanded to us comparatively only, that we
rather choose to suffer than deny the truth ; or the manner only is commanded, that we suffer
with patience. — The physical act of taking away the life, or of offending -when commanded by the
law of self-defence, is no murder. — We have a greater dominion over goods and nrembers, (except
in case of mutilation, which is a little death,) than over our life. — To kill is no* of the nature
of self-defence, but accidental thereunto.— Defensive war cannot be without offending.— The na-
ture of defensive and offensive wars. — Flying is resistance.
QUESTION XXXI.
Whether self-defence, by opposing violence to unjust violence, be lawful, by the law of
God and nature, ........ 159
Self-defence in man natural, but modus, the way, must be rational and just. — The method of self-
defence. — Violent re-offending in self-defence the last remedy. — It is physically impossible for a
nation to fly in the case of persecution for religion, and so they may resist in their own self-de-
fence.— Tutela vitce proximo, and remota. — In a remote posture of self-defence, we are not to take
us to re-offending, as David was not to kill Saul when he was sleeping, or in the cave, for the
same cause. — David would not kill Saul because he was the Lord's anointed. — The king not lord
of chastity, name, conscience, and so may be resisted. — By universal and particular nature, self-
defence lawful, proved by divers arguments. — And made good by the testimony of jurists. — The
love of ourselves, the measure of the love of our neighbours, and enforceth self-defence. — Nature
maketh a private man his own judge and magistrate, when the magistyate is absent, and violence
is offered to his life, as the law saith. — Self-defence, how lawful it is.v-What presumption is from
the king's carriage to the two kingdoms, are in law sufficient grounds of defensive wars. — Offen-
sive and defensive wars differ in the event and intentions of men, but not in nature and specie,
nor physically. — David's case in not killing Saul nor his men, no rule to us, not in our lawful de-
fence, to kill the king's emissaries, the cases far different.
QUESTION XXXII.
Whether or no the lawfulness of defensive wars can be proved from the Scripture,
from the examples of David, the people's rescuing Jonathan, Elisha, and the
eighty valiant priests who resisted Uzziah, . . . . .166
David warrantably raised an army of men to defend himself against the unjust violence of his prince
Saul. — David's not invading Saul and his men, who did not aim at arbitrary government, at sub-
version of laws, religion, and extirpation of those that worshipped the God of Israel and opposed
idolatry, but on!y pursuing one single person, far unlike to our case in Scotland and England
now. — David's example not extraordinary. — Elisha's resistance proveth defensive wars to be war-
rantable.— Resistance made to king Uzziah by eighty valiant priests proveth the same. — The peo-
ple's rescuing Jonathan proveth the same. — Libnah's revolt proveth this. — The city of Abel de-
fended themselves against Joab, king David's general, when he came to destroy a city for one
wicked conspirator, Sheba's sake.
QUESTION XXXIII.
Whether or no Rom. xiii. 1 make any thing against the lawfulness of defensive wars, 172
The king not only understood, Rom. xiii. — And the place, Rom. xiii., discussed.
QUESTION XXXIV,
Whether royalists prove, by cogent reasons, the unlawfulness of defensive wars, 175
Objections of royalists answered.— The place, Exod. xxii. 28, " Thou shalt not revile the gods," &c.
answered. — And Eccles. x. 20. — The place, Eccles. viii. 3, 4, " Where the word of a king is," &c.
answered.— The place, Job. xxxiv. 18, answered.— And Acts xxiii. 3, " God shall smite thee, fhou
whited wall," &c. — The emperors in Paul's time not absolute by their law. — That objection, that
we have no practice for defensive resistance, and that the prophets never complain of the omis-
sion of the resistance of princes, answered. — The prophets cry against the sin of non-resistance,
when they cry against the judges, because they execute not judgment for the oppressed. — Judah's
subjection to Nebuchadnezzar, a conquering tyrant, no warrant to us to subject ourselves to ty-
rannous acts. — Christ's subjection to Caesar nothing against defensive wars.
QUESTION XXXV.
Page
"Whether the sufferings of the martyrs in the primitive church militant be against the
lawfulness of defensive wars, . . . . . .182
Tertullian neither ours nor theirs in the question of defensive wars.
QUESTION XXXVI.
"Whether the king have the power of war only, . . . . .184
Inferior judges have the power of the sword no less than the king. — The people tyed to acts of cha-
rity, and to defend themselves, the church, and their posterity against a foreign enemy, though
the king forbid. — Flying unlawful to the states of Scotland and England now, God's "law tying
them to defend their country. — Parliamentary power a fountain-power above the king.
QUESTION XXXVII.
"Whether the estates of Scotland are to help their brethren, the protestants of England,
against cavaliers, proved by argument 13, . . . . .187
Helping of neighbour nations lawful, divers opinions concerning the point. — The law of Egypt
against those that helped not the oppressed.
QUESTION XXXVIII.
"Whether monarchy be the best of governments, . . . .190
Whether monarchy be the best of governments hath divers considerations, in which each one may
be less or more convenient. — Absolute monarchy is the worst of governments. Better want
power to, do ill as have it. — A mixture sweetest of all governments — Neither king nor parliament
have a voice against law and reason.
QUESTION XXXIX.
"Whether or no any prerogative at all above the law be due to the king. Or if jura
majestatis be any such prerogative, . . . . . .193
A threefold supreme power. — "What be jura regalia. — Kings confer not honours from their pleni-
tude of absolute power, but according to the strait line and rule of law, justice, and good observ-
ing.— The law of the king, 1 Sam. viii. 9, 11.— Difference of kings and judges. — The law of the
king, (1 Sam. viii. 9, 11,) no permissive law, such as the law of divorce. — What dominion the king
hath over the goods of the subjects.
QUESTION XL.
Whether or no the people have any power over the king, either by his oath, covenant,
or any other way, ........ 198
The people have power over the king by reason of his covenant and promise. — Covenants and pro-
mises violated, infer co-action, dejure, by law, though not de facto.— Mutual punishments may be
where there is no relation of superiority and inferiority. — Three covenants made by Arnisaeus. —
The king not king while he swear the oath and be accepted as king by the people. — The oath of the
kings of France. — Hugo Grotius setteth down seven cases in which the people may accuse, punish,
or dethrone the king. — The prince a noble vassal of the kingdom upon four grounds. — The cove-
nant had an oath annexed to it. — The prince is but a private man in a contract. — How the royal
power is immediately from God, and yet conferred upon the king by the people.
QUESTION XLI.
Whether doth the P. Prelate with reason ascribe to us doctrine of Jesuits in the
question of lawful defence, ....... 204
The sovereignty is originally and radically in the people, as in the fountain, was taught by fathers,
ancient doctors, sound divines, lawyers, before there was a Jesuit or a prelate whelped, in rcrum
Page
natura. — The P. Prelate holdeth the Pope to be the vicar of Christ. — Jesuits' tenets concerning
kings.— The king not the people's deputy by our doctrine, it is only the calumny of the P. Pre- ■
late. — The P. Prelate will have power to act the bloodiest tyrannies on earth upon the church of
Christ, the essential power of a king.
QUESTION XLII.
Whether all Christian kings are dependent from Christ, and may be called his vice-
gerents, ......... 210
Why God, as God, hath a man a vicegerent under him, but not as mediator. — The king not headof the
church. — The king a sub-mediator, and an nnder-redeemer, and a sub-priest to offer sacrifices to
God for us if he be a vicegerent. — The king no mixed person. — Prelates deny kings to be subject
to the gospel. — By no prerogative royal may the king prescribe religious observances and human
ceremonies in God's worship. — The P. Prelate giveth to the king a power arbitrary, supreme, and
independent, to govern the church. — Reciprocation of subjections of the king to the church, and of
the church to the king, in divers kinds, to wit, of ecclesiastical and civil subjection, are no more
absurd than for Aaron's priest to teach, instruct and rebuke Moses, if he turn a tyrannous Achab,
and Moses to punish Aaron if he turn an obstinate idolator.
QUESTION XLIII.
Whether the king of Scotland be an absolute prince, having a prerogative above laws
and parliaments, . . . . . . . .216
The king of Scotland subject to parliaments by the fundamental laws, acts, and constant practices
of parliaments, ancient and late in Scotland. — The king of Scotland's oath at his coronation. — A
pretended absolute power given to James VI. upon respect of personal endowments, no ground of
absoluteness to the king of Scotland. — By laws and constant practices the kings of Scotland sub-
ject to laws and parliaments, proved by the fundamental law of elective princes, and out of the
most partial historians, and our acts of parliament of Scotland. — Coronation oath. — And again at
the coronation of James VI. that oath sworn ; and again, 1 Pari. James VI. ibid and seq. — How
the king is supreme judge in all causes. — The power of the parliaments of Scotland. — The Confes-
sion of the faith of the church of Scotland, authorised by divers acts of parliament, doth evi-
dently hold forth to all the reformed churches the lawfulness of defensive wars, when the supreme
magistrate is misled by wicked counsel. — The same proved from the confessions of faith in other
reformed churches.— The place, Rom. xiii., exponed in our Confession of faith. — The confession,
not only Saxonic, exhibited to the Council of Trent, but also of Helvetia, France, England, Bohe-
mia, prove the same. — William Laud and other prelates, enemies to parliaments, to states, and to
the fundamental laws of the three kingdoms of England, Scotland, and Ireland. — The parliament
of Scotland doth regulate, limit, and set bounds to the king's power. — Fergus the first king not a
conqueror. — The king of Scotland below parliaments, considerable by them, hath no negative
voice.
QUESTION XLIV.
General results of the former doctrine in some few corollaries, in twenty-two ques-
tions, ......... 227
Concerning monarchy, compared with other forms— How royalty is an issue of nature.— And how
magistrates, as magistrates, be natural. — How absoluteness is not a ray of God's majesty. — And
resistance not unlawful, because Christ and his apostles used it not in some cases. — Coronation is
no ceremony. — Men may limit the power that they gave not. — The commonwealth not a pupil or
minor properly. — Subjects not more obnoxious to a king than clients, vassals, children, to their
superiors.— If subjection passive be natural. — Whether king Uzziah was dethroned.— Idiots and
children not complete kings, children are kings in destination only. — Denial of passive subjection
in things unlawful, not dishonourable to the king, more than denial of active obedience in the
same things. — The king may not make away or sell any part of his dominions. — People may in
some cases convene without the king. — How, and in what meaning subjects are to pay the king's
debts. — Subsidies the kingdom's due, rather than the king's. — How the seas, ports, forts, castles,
militia, magazine, are the king's, and how they are the kingdom's.
SKETCH OF THE LIFE
SAMUEL RUTHERFORD.
The more prominent features of a man's public life are generally characterised by the
spirit of the times in which he lived. If the period has been peaceful and undisturbed
by party controversy and the disputes of opposing factions, then all flows smoothly and
quietly on ; the minds of the people repose unharassed and unexcited by public conten-
tions and quarrels ; there is opportunity for the cultivation of the useful arts ; a taste is
displayed in the pursuit of learning and literature, and improvements and discoveries, in
every branch of science and art, advance with rapid strides. Such a state of things men
of civilized nations in general desire. Yet a period like this, when there has been " peace
in the land," looked back upon from a succeeding age, or read as a chapter of history, ap-
pears tame and monotonous. There is nothing to arouse the attention or awaken the
feelings, when the only record we have of a man is, that he lived, died, and was buried.
But it is otherwise when the times have been the scene of anarchy, civil war, or persecu-
tion. Then the calmness and repose of the community is broken up ; men are excited
and roused by the spirit-stirring events that are passing around them ; each must take
their side ; — it is then that their characters are drawn out and shown in a true light : the
weak, the timid and undecided, keep the back ground, while men of courage and daring
stand forward in bold relief.
There has been in the history of mankind, in all ages, two great contending principles
at issue — the contest of error against truth, and the struggle of truth with error. On the
one side — error, with the violence of oppression, doing all that persecution can accomplish,
in endeavouring to exterminate virtue from the moral universe ; and on the other — truth,
with noble courage and exalted firmness, maintaining the purity of her principles in oppo-
sition to ignorance and persecution. For upwards of four thousand years she has grap-
pled with superstition, idolatry, and bigotry, and, with moral weapons, she has vindicated
the justice of her principles, which her enemies have found easier to answer with the sword
than by argument. In every age error has had the majority, for truth has had few fol-
lowers ; but, in the end, she has been triumphant even at the stake, or on the scaffold.
Yet the faggot will burn with a fiercer flame, and the guillotine will be deeper dyed with
the martyr's blood than it has ever yet been, ere the world assent to the truth of her doc-
trines. On looking back, and reviewing the civil and religious history of our own land,
we obsei-ve the mighty contest between Popery and the Reformed Doctrine — we see the
fearful conflict of right and wrong — and we see truth, with a gigantic effort, burst the fet-
ters which had so long held the people in mental bondage and ignorance. Again, we ob-
serve the struggles between Presbytery and Episcopacy, during most of the latter half of
the seventeenth century ; one party urged on by a spirit of opposition and bigotry, to
trample on the religious rights and privileges of the people, and doing all in their power
to bring them again under the iron sway of the Church of Rome ; the other, with moral
XVI SKETCH OF THE LIFE OF
courage and firmness, standing boldly forward, in the front of persecution, tyranny, and
oppression, for the cause and promotion of true religion ; and. from the martyrdom of
Hamilton, Scotland's first martyr, many a noble spirit has been immolated and set free,
for the cause, and at the shrine of Truth ; —
" Yet few remember them. They lived unknown
Till persecution dragg'd them into fame,
And chased them up to heaven."
Samuel Rutherford was born in the parish of Nisbet, in Roxburghshire, in the year
1600. Of the sphere in life occupied by his parents, we have no means of correctly ascer-
taining. He is mentioned by Reid " to have been born of respectable parents,"* and Wod-
row states that he came of " mean, but honest parents." It is probable, however, that his
father was engaged in agricultural pursuits ; at all events, he must have held a respectable
rank in society, as he otherwise could not have given his son so superior an education. At
an early period of his life he discovered a precocious talent, and his parents consequently
destined him for the ministry.
In 1617 he was sent to Edinburgh, and entered the University as a student, where he
appears to have excelled in the studies in which he was engaged, for, in four years, he
took his degree of Master of Arts; and in 1623, after a severe contest with three compe-
titors, he was elected one of the Regents of the College. The acquirements he displayed
at this early period were justly appreciated by his contemporaries. We are told that
" the whole Regents, out of their particular knowledge of Mr Samuel Rutherford, demon-
strated to them [the Judges] his eminent abilities of mind and virtuous dispositions,
wherewith the Judges, being satisfied, declared him successor in the Professor of Humani-
ty."! He, however, only acted in the capacity of Regent about two years, and, on leaving
his charge, he devoted himself to the study of Theology, under Mr Andrew Ramsay.
The Church of Scotland was at this period almost entirely under the jurisdiction of
Episcopal bishops. The establishment of Episcopacy had been gradually going on since
the accession of James to the throne of England, who lent all his aid and authority to the
furtherance of that end. The Presbyterians who would not conform to the discipline of
church government which had been obtruded upon them, were cruelly oppressed. Many
were imprisoned, and their goods confiscated ; others were banished from their native
land ; and not a few were dragged to the scaffold or the stake. At the death of King
James, in 1625, his son Charles succeeded to the throne, and the people hoped that their
grievances would now be listened to, and their wrongs redressed ; but they were disap-
pointed. " The father's madness," says Stevenson, " laid the foundation for his succes-
sor's woes, and the son exactly followed the father's steps." J James held the principles
of a royal prerogative, and required absolute and implicit obedience in too strict a manner.
These he instilled into the mind of his son, and was, unhappily, too successful ; for, on
Charles' succession, he carried out the same principles to a most intolerant degree, which
was the cause of so much anarchy and confusion in the nation, and entailed upon himself
those misfortunes which rendered his reign so unhappy, and his end so miserable.
In 1627, Rutherford was licensed as a preacher of the Gospel, and through the influ-
ence of John Gordon of Kenmure, (afterwards Viscount Kenmure,) appointed to a church
in the parish of Anwoth, in Kirkcudbright. There is sufficient authority to show that he
was not inducted by Episcopal ordination. Being firmly attached to the Presbyterian
form of Government from his youth, he manifested great dislike to Prelacy, and could
never be induced to stoop to the authority of the bishops, which, at that time, was a very
difficult matter to evade. We are told by Stevenson, that " until the beginning of the
year 1628, some few preachers, by influence, were suffered to enter the ministry without
conformity, and in this number we suppose Mr Rutherford may be reckoned, because
he was ordained before the doors came to be more closely shut upon honest preachei'S."
Other authorities might be quoted to the same effect. Here he discharged the duties of
* Lives of the Westminster Divines. t Crawford's History of the University,
i Stevenson's Church Historv, Vol. I.
SAMUEL KUTHERFORD. XVI
his sacred calling with great diligence ; and, no doubt, with success. He was accustomed
to rise so early as three o'clock in the morning, and devoted his whole time to the spiri-
tual wants of his flock and his own private religious duties. His labours were not confined
to his own parishioners, many persons resorted to him from surrounding parishes. " He
was," says Livingston, " a great strengthener of all the Christians in that country, who
had been the fruits of the ministry of Mr John Welsh, the time he had been at Kirkcud-
bright."
In 1630, Rutherford experienced a severe affliction by the death of his wife, after a
painful and protracted illness of thirteen months, scarcely five years after their marriage.
Her death seems to have been the source of much sorrow to him, as he frequently takes
notice of it in his letters with much feeling, long after his painful bereavement. To add
to his distress, he was himself afflicted with a fever, which lasted upwards of three months,
by which he was so much reduced, that it was long ere he was able to perform his sacred
duties.
John Gordon, Viscount Kenmure, who had long been the friend and patron of Ruther-
ford, for whom he entertained the greatest respect and esteem, was in August 1634, seized
with a disease which caused his death on September following, to the deep sorrow of
Rutherford, who was with him at his last moments. Kenmure was a nobleman of an
amiable and pious disposition ; and, as may be supposed, experienced much pleasure in
his intercourse with Rutherford. To Lady Kenmure, Rutherford wrote many of his
famous " Letters."
About this time, the doctrines of Arminius began to spread to an alarming extent
amongst the Episcopalians. His tenets were espoused by Laud, Archbishop of Canterbury,
and also by many of the Scottish prelates, headed by Maxwell, Rishop of Ross, as those
only who held the same principles had any chance of preferment in the Church. Ruther-
ford viewed the promulgation of these dangerous tenets with great anxiety, and did all in
his power to controvert and oppose them. In 1636, appeared his learned treatise, en-
titled, " Excrcitationes Apologetics fro Divina Gratia" which was dedicated to Vis-
count Kenmure, but was not published till eighteen months after his death. This work
gave great offence to the government : he was in consequence summoned to appear before
a High Commission Court, which had been constituted by Thomas Sydserff, Rishop of
Galloway, a man of Arminian principles, which met at Wigton in June (1636), and there
deprived of his office. Sydserff, who had imbibed an inveterate hatred against him, was
not satisfied with this, but had him again summoned before the High Commission Court at
Edinburgh, which met in July following, and he was there accused " of non-conformity,
for preaching against the Perth Articles, and for writing a book, entitled, Exercitationes
Apologiticce pro Divina Gratia, which they alleged did reflect upon the Church of Scot-
land ; but the truth was, the arguments in that book did cut the sinews of Arminianism,
and galled the Episcopal clergy to the quick, and therefore Rishop Lydserff could no
longer abide him." Here many other false, frivolous, and extravagant charges were
brought against him, but being firm in his innocence, he repelled them all. Lord Lorn
(brother to Lady Kenmure), and many others, endeavoured to befriend him ; but such was
the malevolence of Sydserff, that he swore an oath, if they did not agree to his wishes, he
would write to the king. After three days' trial, sentence was passed upon him, that he
be deprived of his pastoral office, and discharged from preaching in any part of Scotland ,
under pain of rebellion, and to be confined before the 20th of August 1636, within the
town of Aberdeen during the king's pleasure. This sentence he obeyed, but severe and
unjust as it was, it did not discourage him, for in one of his letters, he says, " I go to my
king's palace at Aberdeen ; tongue, pen, nor wit, cannot express my joy."
During his confinement in Aberdeen, he wrote many of his well-known " Letters,"
which have been so popular. Indeed, there are few cottage libraries in Scotland in which
they do not find a place among the scanty but select collection. Episcopacy and Arminian-
ism at this time held the sole sway in Aberdeen, and it was with no gracious feeling that
the learned doctors beheld the arrival of Rutherford. They had all imbibed the principles
of their great patron, Laud, and manifested great hostility to Presbyterianism, which was
the principal cause of his being sent to that town. He met at first with a cold reception,
and his opponents did all in their power to operate on the minds of the people against him.
KV111 SKETCH OF THE LIFE OF
He says himself, that " the people thought him a strange man, and his cause not good."
His innocency, however, and the truth of his cause, began at last to be known, and his
popularity was spreading daily ; — which so much alarmed the doctors, that they wished he
might be banished from the kingdom. They entered into several disputations with him,
but he appears to have proved himself a match for them. " I am here troubled," says he,
" with the disputes of the great doctors, (especially with Dr Barron, on ceremonial and
Arminian controversies — for all are corrupt here,) but, I thank God, with no detriment to
the truth, or discredit to my profession."
About this period, great confusion and commotion reigned in Scotland. It had long
been the wish of King Charles to introduce the Church of England Service-book and
Canons into the worship of the Presbyterians of Scotland. He accordingly, in April 1636,
with ill-judged policy, commenced arrangements for its accomplishment, and gave com-
mands to Archbishop Laud, Bishops Juxon and Wren, to compile a liturgy for the special
use of the Church of Scotland. Consequently, one was soon framed, which was nearly similar
to that used in the Church of England, excepting a few alterations ; and, wherever these
occurred, the language was almost synonimous with the Roman Missal. In 1637, a pro-
clamation was issued, commanding the people's strict observance of this new form of
worship, and a day was accordingly fixed for its introduction into Edinburgh, — on which
it was presumed that compliance would follow throughout all the land. The feelings of
the people, as may be supposed, were roused to a high pitch ; — they stood boldly forward in
opposition to such a tyrannical encroachment on their religious liberty, and manifested
such a firm and determined spirit of resistance, that Charles soon began to see, when too
late, that he had drawn the reing too tight. They would accept of no measure short
of an entirely free and unfettered Presbyterian form of worship, and a chain of events
followed which led to a renewal of the National Covenant and the abolition of
Episcopacy.
During these tumults, Rutherford ventured to leave the place of his confinement in
Aberdeen, and returned to his parishioners in Anwoth about February 1638, after an
absence of more than eighteen months. They did not, however, long enjoy his ministra-
tions, as we find him, in the same year, actively engaged in Glasgow in forwarding the
great covenanted work of reformation. Rutherford was deputed one of the commissioners
from the Presbytery of Kirkcudbright to the famous General Assembly of 1638, which was
convened at Glasgow on the 21st of November. He was called upon to give an account of
the accusations which had been preferred against him by the high commission court.
After deliberation, a sentence was passed in his favour, and he, along with some others who
were in the same circumstances, were recognised as members of the Assembly. Soon
after this, an application was made to the Assembly's commission to have him trans-
ferred to Glasgow, and another by the University of St. Andrews, that he might be elected
professor of divinity in the New College there. The commission appointed him to the
professorship in St. Andrews, as his learning and talents fully qualified him for that
important situation. He manifested, however, great reluctance to leave Anwoth, and
pleaded, in a petition, his " bodily weakness and mental incapacity." There were several
other petitions presented from the county of Galloway against his leaving Anwoth, but to
no effect; the Court sustained his appointment. In October 1639, he removed to the
scene of his future labours, and was appointed colleague to Mr Robert Blair, one of the
ministers of St. Andrews.
Rutherford was nominated one of the commissioners to the General Assembly of divines
held at Westminster in 1643. His colleagues were — Alexander Henderson, Robert
Baillie, George Gillespie, and Robert Douglas, ministers ; — the Earl of Cassilis, Lord
Maitland, (afterwards Duke of Lauderdale,) and Sir Archibald Johnston, of Warriston,
ciders. He took a prominent part in all the discussions in that famous council, and pub-
lished several works of a controversial and practical nature. About this time, he wrote
Lis celebrated work entitled Lex Rex, in answer to a treatise by John Maxwell, the
excommunicated Bishop of Ross, entitled " Sacro-Sancta Begum 31ajestas) or the sacred
and royal prerogative of Christian kings, wherein soveraigntie is, by Holy Scripture, reve-
rend antiquitie, and sound reason asserted," 4to., Oxford, 1644. This work endeavours to
prove, that the royal prerogative of kingly authority is derived alone from God ; and it
SAMUEL RUTHERFORD. XX
demands an absolute and passive obedience of the subject to the will of the sovereign. The
arguments in Lex Rex completely refute all the wild and absurd notions which Maxwell's
work contains, although some of the sentiments would be thought rather democratical
in modern times. The author displays an intimate knowledge of the classics and the writings
of the ancient fathers and schoolmen. The work caused great sensation on its appearance.
Bishop Guthrie mentions, that every member of the assembly " had in his hand that book
lately published by Mr Samuel Rutherford, which was so idolized, that whereas Buchanan's
treatise (de jure Regni apud Scotos) was looked upon as an oracle, this coming forth, it
was slighted as not anti-monarchical enough, and Rutherford's Lex Rex only thought
authentic."
Rutherford, who was anxious to return to Scotland, on account of bad health, had made
an application to the Assembly for permission to leave ; but it was not granted till their
business was finished, as his services were very valuable to them ; and it was not till 1647
that he was permitted to revisit his native land. On his return to Scotland, he resumed
his labours in St. Andrews, and was in December of the same year appointed Principal of
the New College, in room of Dr Howie, who had resigned on account of old age. In
1651 he was elected Rector of the University, and was now placed in situations of the
highest eminence to which a clergyman of the Church of Scotland can be raised. The fame
of Rutherford as a scholar and divine, had now spread both at home and abroad. In the
Assembly of 1649, a motion was made, that he would be removed to Edinburgh as Pro-
fessor of Divinity in the University ; and about the same time he received a special invita-
tion to occupy the chair of Divinity and Hebrew in the University of Harderwyck ; and
also another from the University of Utrecht, both of which he respectfully declined. He
had too much regard for the interests of the Church of Scotland to leave the kingdom,
considering the critical position in which it was at that time placed.
During the period which followed the death of Charles I. to the restoration, Rutherford
took an active part in the struggles of the church in asserting her rights. Cromwell had
in the meantime usurped the throne, and independency held the sway in England. On
the death of Cromwell in 1658, measures were taken for the restoration of Charles
II. to the throne. The Scottish Parliament met in 1651, when the national covenant
was recalled — Presbyterianism abolished — and all the decrees of Parliament, since 1638,
which sanctioned the Presbyterian system, were rescinded. The rights of the people were
thus torn from them — their liberties trampled upon — and the whole period which follow-
ed, till the martyrdom of Renwick in 1688, was a scene of intolerant persecution and
bloodshed. Rutherford, as may be supposed, did not escape persecution in such a state
of things. His work, Lex, Rex, was considered by the government as " inveighing against
monarchie and laying ground for rebellion;" and ordered to be burned by the hand of the
common hangman at Edinburgh. It met with similar treatment at St Andrews, and also
at London ; and a proclamation was issued, that every person in possession of a copy, who
did not deliver it up to the king's solicitor, should be treated as an enemy to the govern-
ment. Rutherford himself was deprived of his offices both in the University and the
Church, and his stipend confiscated ; he was ordered to confine himself within his own
house, and was summoned to appear before the Parliament at Edinburgh, to answer a
charge of high treason. It may be easily imagined what his fate would have been had
he lived to obey the mandate ; but ere the time arrived he was summoned to a far higher
than an earthly tribunal. Not having a strong constitution, and being possessed of an ac-
tive mind, he had evidently overworked himself in the share he took in the struggles and
controversies of the time. Although not an old man, his health had been gradually de-
clining for several years. His approaching dissolution he viewed with Christian calmness
and fortitude. A few weeks before his death, he gave ample evidence of his faith and
hope in the Gospel, by the Testimony which he left behind him.* On his death-bed he
was cheered by the consolations of several Christian friends, and on the 20th of March
1661, in the sixty-first year of his age, he breathed his last, in the full assurance and hope
of eternal life. His last words were, " Glory, glory, dwelleth in Emmanuel's land."
* A Testimony left by Mr Samuel Rutherford to the Work of Reformation in Great Britain and Ireland,
before his death, 8to.
Ai SKETCH OF THE LIFE OF SAMUEL RUTHERFORD.
On April 28th, 1842, the foundation-stone of a colossal monument, called the " Ruther-
furd Monument," was laid to his memory ; it is erected on the farm of Boreland, in the
parish of Anwoth, about half-a-mile from where he used to preach. The monument is of
granite ; height, from the surface to the apex, sixty feet ; square of the pedestal, seven
feet, with three rows of steps.
Of the character of Rutherford — as to his talents and piety, nothing need be here said.
All who know his writings, will be at a loss whether most to admire his learning and depth
of reasoning, or his Christian graces. We give the following list of his works, which is
appended to a memoir* by a talented gentleman of this city ; a work compiled with great
research and discrimination, and which will amply repay a perusal by all who feel an inte-
rest in the remembrance of an individual so distinguished for learning, uprightness, and
piety, as was Samuel Rutherford. — Exercitationes Apologeticoz pro Divina Gratia :
Amst., 12mo., 1636. A Peaceable and Temperate Plea for PauVs Presbyterie in Scot-
land: Lond., 4to., 1642. A Sermon preached to the Honourable House of Commons,
January 31, 1643. Daniel vi. 26: Lond., 4to., 1644. A Sermon preached before the
Honourable House of Lords, the 2bth day of June 1645. Luke vii. 22 — 25. Mark iv.
38 — 40. Matt. viii. 26: Lond., 4to., 1645. Lex, Rex; or the Law and the Prince; a
discourse for the just prerogative of king and people : Lond., 4to., 1644. The Due
Right of Presbyteries, or a Peaceable Plea for the government of the Church of Scot-
land : Lond., 4to., 1644. The Tryal and Triumph of Faith : Lond., 4to., 1645. The
Divine Right of Church Government and Excommunication: Lond., 4to., 1646. Christ
Dying and Drawing to Himself: Lond., 4to., 1647. A Survey of the Spiritual Anti-
christ, opening the secrets of Familisme and Antinomianisme : Lond., 1648. A Free
Disputation against Pretended Liberty of Conscience : Lond., 4to, 1649. The Last and
Heavenly Speeches, and Glorious Departure of John Gordoun, Viscount Kenmuir :
Edin., 4to., 1649. Disputatio Scholastica de Divina Providentia: Edin., 4to, 1651.
The Covenant of Life opened: Edin., 4to., 1655. A Survey of the Survey of that
Summe of Church Discipline penned by Mr Thomas Hooker : Lond., 4to., 1658. Influ-
ences of the Life of Grace : Lond., 4to., 1659. Joshua Redivivus, or Mr Rutherford's
Letters, in three parts : 12mo., 1664. Examen Arminianismi, conscriptum et discipulis
dictatum a doctissimo clarissimoque viro, D. Samuele Rhetorforte, SS. Theol. in Aca-
demia Scotiae Sanctandreana Doctore et Professore: Ultraj., 12mo., 1668.
* Life of Samuel Rutherford, by Thomas Murray, L.L.D. Edin., 1827.
THE AUTHOR'S PREFACE.
Who doubteth (Christian Reader.) but innocency
must be under the courtesy and mercy of malice,
and that it is a real martyrdom to be brought under
the lawless inquisition of the bloody tongue. Christ,
the prophets, and apostles of our Lord, went to
heaven with the note of traitors, seditious men, and
such as turned the world npside down : calumnies
of treason to Caesar were an ingredient in Christ's
cup, and therefore the author is the more willing to
drink of that cup that touched his lip, who is our
glorious Forerunner : what, if conscience toward
God, and credit with men, cannot both go to heaven
with the saints, the author is satisfied with the for-
mer companion, and is willing to dismiss the other.
Truth to Christ cannot be treason to Ceesar, and for
his choice he judgeth truth to have a nearer relation
to Christ Jesus, than the transcendent and bound-
less power of a mortal prince.
He considered that popery and defection had made
a large step in Britain, and that arbitrary govern-
ment had over-swelled all banks of law, that it was
now at the highest float, and that this sea approach-
ing the farthest border of fancied absoluteness, was
at the score of ebbing : and the naked truth is, pre-
lates, a wild and pushing cattle to the lambs and
flock of Christ, had made a hideous noise, the wheels
of their chariot did run an equal pace with the
blood-thirsty mind of the daughter of Babel. Pre-
lacy, the daughter planted in her mother's blood,
must verify that word, As is the mother, so is the
daughter : why, but do not the prelates now suffer ?
True, but their sufferings are not of blood, or kin-
dred, to the calamities of these of whom Lactantius
saith, (1. 5, c. 19,) 0 quam honesta voluntate miseri
erant. The causes of their suffering are, 1. Hope
of gain and glory, steering their helm to a shore
they much affect ; even to a church of gold, of pur-
ple, yet really of clay and earth. 2. The lie is more
active upon the spirits of men, not because of its
own weakness, but because men are more passive in
receiving the impressions of error than truth ; and
opinions lying in the world's fat womb, or of a con-
quering nature, whatever notions side with the
world, to prelates and men of their make are very
efficacious.
There is another cause of the sickness of our
time, God plagued heresy to beget Atheism and se-
curity, as atheism and security had begotten heresy,
even as clouds through reciprocation of causes en-
gender rain, rain begat vapours, vapours clouds, and
clouds rain, so do sins overspread our sad times in a
circular generation.
And now judgment presseth the kingdoms, and
of all the heaviest judgments the sword, and of
swords the civil sword, threateneth vastation, yet
not, I hope, like the Roman civil sword, of which it
was said,
Bella geri placuit nullos habitura triumphos.
I hope this war shall be Christ's triumph, Baby-
lon's ruin.
That which moved the author, was not (as my ex-
communicate adversary, like a Thraso, saith) the
escapes of some pens, which necessitated him to
write, for many before me hath learnedly trodden in
this path, but that I might add a new testimony to
the times.
I have not time to examine the P. Prelate's pre-
face, only, I give a taste of his gall in this preface,
and of a virulent piece, of his agnosco stylum et gc-
nium Thrasonis, in which he laboureth to prove how
inconsistent presbyterial government is with mon-
archy, or any other government.
1. He denieth that the crown and sceptre is under
any co-active power of pope or presbytery, or cen-
surable, or dethroneable ; to which we say, presby-
teries profess that kings are under the co-active
power of Christ's keys of discipline, and that pro-
phets and pastors, as ambassadors of Christ, have
the keys of the kingdom of God, to open and let in
believing princes, and also to shut them out, if they
rebel against Christ ; the law of Christ excepteth
none, (Mat. xvi. 19 ; xviii. 15, 16 ; 2 Cor. x. 6 ; Jer.
i. 9,) if the king's sins may be remitted in a ministe-
rial way, (as Job xx. 23, 24,) as prelates and their
priests absolve kings ; we think they may be bound
by the hand that loosed ; presbyteries never de-
throned kings, never usurped that power. Your
father, P. Prelate, hath dethroned many kings ; I
mean the Pope, whose power, by your own confes-
sion, (c. 6, p. 58,) differeth from yours by divine
right only in extent.
2. When sacred hierarchy, the order instituted by
Christ, is overthrown, what is the condition of
sovereignty ? — Ans. — Surer than before, when pre-
lates deposed kings. 2. I fear Christ shall never
own this order.
3. The mitre cannot suffer, and the diadem be
secured.- — Ans. — Have kings no pillars to their
thrones but antichristian prelates. Prelates have
trampled diadem and sceptre under their feet, as
histories teach us.
4. Do they not (puritans) magisterially determine
that kings are not of God's creation by authorita-
tive commission ; but only by permission, extorted
by importunity, and way given, that they may be a
scourge to a sinful people? — Ans. — Any unclean
spirit from hell, could not speak a blacker lie ; we
hold that the king, by office, is the church's nurse
father, a sacred ordinance, the deputed power of
God ; but by the Prelate's way, all inferior judges,
and God's deputies on earth, who are also our fathers
in the fifth commandment style, are to be obeyed by
no divine law ; the king, misled by p. prelates, shall
forbid to obey them, who is in downright truth, a
mortal civil pope, may loose and liberate subjects
from the tie of a divine law.
5. His inveighing against ruling elders, and the
rooting out of antichristian prelacy, without any
word of Scripture on the contrary, I pass as the
extravagancy of a malcontent, because he is de-
servedly excommunicated for perjury, popery, So-
cinianism, tyranny over men's conscience, and invad-
ing places of civil dignity, and deserting his calling,
and the camp of Christ, &c.
6. None were of old anointed but kings, priests,
and prophets ; who, then, more obliged, to maintain
the Lord's anointed, than priests and prophets ?
The church hath never more beauty and plenty un-
der any government than monarchy, which is most
countenanced by God, and magnified by Scripture.
— Ans. Pastors are to maintain the rights of peo-
ple, and a true church, no less than the right of
kings ; but prelates, the court parasites, and crea-
tures of the king, that are born for the glory of
their king, can do no less than profess this in words,
yet it is true that Tacitus writeth of such, (Hist. 1.
1,) Libentius cum fortuna principis, quam cumprin-
cipe loquuntur .- and it is true, that the church hath
had plenty under kings, not so much, because they
were kings, as because they were godly and zealous :
except the P. P. say, that the oppressing kings of
Israel and Judah, and the bloody horns that made
war with the lamb, are not kings. In the rest of
the epistle he extols the Marquis of Ormond with
base flattery, from his loyalty to the king, and
his more than admirable prudence in the treaty
of cessation with the rebels ; a woe is due to this
false prophet, who calleth darkness light, for the
former was abominable and perfidious apostacy from
the Lord's cause and people of God, whom he once
defended, and the cessation was a selling of the
blood of many hundred thousand protestants, men,
women, and sucking children.
This cursed P. hath written of late a treatise
against the presbyterial government of Scotland, in
which there is a bundle of lies, hellish calumnies,
and gross errors.
1. The first lie is, that we have lay elders, where-
as, they are such as rule, but labour not in the word
and doctrine (1 Tim. v. 7, p. 3).
2. The second lie, that deacons, who only attend
tables, are joint rulers with pastors (p. 3).
3. That we never, or little use the lesser excom-
munication, that is, debarring from the Lord's Sup-
per (p. 4J.
4. That any church judicature in Scotland exact-
eth pecuniary mulcts, and threaten excommunica-
tion to the non-payers, and refuseth to accept the
repentance of any who are not able to pay : the
civil magistrate only fineth for drunkenness, and
adultery, blaspheming of God, which are frequent
sins in prelates.
5. A calumny it is to say that ruling elders are
of equal authority to preach the word as pastors
(p. 7).
6. That laymen are members of presbyteries or
general assemblies. Buchanan and Mr Melvin were
doctors of divinity ; and could have taught such an
ass as John Maxwell.
7. That expectants are intruders upon the sacred
function, because, as sons of the prophets, they exer-
cise their gifts for trial in preaching.
8. That the presbytery of Edinburgh hath a super-
intending power, because they communicate the af-
fairs of the church, and write to the churches, what
they hear prelates and hell devise against Christ and
his church.
9. That the king must submit his sceptre to the
presbytery; the king's sceptre is his royal office,
which is not subject to any judicature.no more than
any lawful ordinance of Christ ; but if the king, as a
man, blaspheme God, murder the innocent, advance
belly-gods, (such as our prelates, for the most part,
were,) above the Lord's inheritance, the ministers of
Christ are to say, " The king troubleth Israel, and
they have the keys to open and shut heaven to, and
upon the king, if he can offend."
10. That king James said, a Scottish presbytery
and a monarchy agreeth as well as God and the
devil, is true, but king James meant of a wicked
king ; else he spake as a man.
11. That the presbytery, out of pride, refused to
answer king James's honourable messengers, is a
lie; they could not, in business of high concern-
ment, return a present answer to a prince, seeking
still to abolish presbyteries.
12. Its a lie, that all sins, even all civil business,
come under the cognizance of the church, for only
sins, as publicly scandalous, fall under their power.
(Matt, xviii. 15—17, &c. ; 2 Thess. iii. 11 ; 1 Tim. v.
20.) It is a calumny that they search out secret
crimes, or that they ever disgraced the innocent, or
divided families ; where there be flagrant scandals,
and pregnant suspicions, of scandalous crimes,
they search out these, as the incest of Spotswood,
P. Prelate of St Andrews, with his own daughter ;
the adulteries of Whiteford, P. Prelate of Brichen,
whose bastard came weeping to the assembly of
Glasgow in the arms of the prostitute : these they
searched out, but not with the damnable oath, ex
officio, that the high commission put upon inno-
cents, to cause them accuse themselves against the
law of nature.
13. The presbytery hinder not lawful merchandise;
scandalous exhortation, unjust suits of law, they may
forbid ; and so doth the Scripture, as scandalous to
Christians, 2 Cor. vi.
14. They repeal no civil laws ; they preach against
unjust and grievous laws, as, Isaiah (x. 1) doth, and
censure the violation of God's holy day, which pre-
lates profaned.
15. ^\ e know no parochial popes, we turn out no
holy ministers, but only dumb dogs, non-residents,
scandalous, wretched, and apostate prelates.
16. Our moderator hath no dominion, the P. Pre-
late absolveth him, while he saith, "All is done in
our church by common consent" (p. 7).
17. It is true, we have no popish consecration,
such as P. Prelate contendeth for in the mass, but
we have such as Christ and his apostles used, in con-
secrating the elements.
18. If any sell the patrimony of the church, the
presbytery censures him ; if any take buds of malt, J
meal, beef, it is no law with us, no more than the
bishop's five hundred marks, or a year's stipend
that the entrant gave to the Lord Bishop for a
church. And whoever took buds in these days, (as
king James by the earl of Duubar, did buy episco-
pacy at a pretended assembly, by foul budding,)
they were either men for the episcopal way, or per-
fidiously against their oath became bishops, all per-
sonal faults of this kind imputed to presbyteries,
agree to them under the reduplication of episcopal
19. The leading men that covered the sins of the
dying man, and so lost his soul, were episcopal
men ; and though some men were presbyterians,
the faults of men cannot prejudice the truth of
God ; but the prelates always cry out against the
rigour of presbyteries in censuring scandals ; because
they themselves do ill, they hate the light; now here
the Prelate condemneth them of remissness in dis-
cipline.
20. Satan, a liar from the beginning, saith, The
presbytery was a seminary and nursery of fiends,
contentions, and bloods, because they excommuni-
cated murderers against king James' will ; which is
all one to say, prophecying is a nurse of bloods,
because the prophets cryed out against king Achab,
and the murderers of innocent Naboth : the men of
God must be either on the one side or the other,
or then preach against reciprocation of injuries.
21. It is false that presbyteries usurp both
swords ; because they censure sins, which the civil
magistrate should censure and punish. Elias might
be said then to mix himself with the civil business
of the kingdom, because be propheeied against ido-
laters' killing of the Lord's prophets ; which crime
the civil magistrate was to punish. But the truth
is, the assembly of Glasgow, 1637, condemned the
prelates, because they, being pastors, would be also
lords of parliament, of session, of secret council, of
exchequer, judges, barons, and in their lawless high
commission, would fine, imprison, and use the
6word.
22. It is his ignorance that he saith, a provincial
synod is an associate body chosen out of all judi-
cial presbyteries ; for all pastors and doctors, with-
out delegation, by virtue of their place and office,
repair to the provincial synods, and without any
choice at all, consult and voice there.
23. It is a lie that some leading men rule all
here ; indeed, episcopal men made factions to rent
the synods; and though men abuse their power to
factions, this cannot prove that presbyteries are in-
consistent with monarchy; for then the Prelate, the
monarch of his diocesan rout, should be anti-mo-
narchical in ahigher manner, for he ruleth all at his
will.
24. The prime men, as Mr R. Bruce, the faithful
servant of Christ, was honoured and attended by all,
because of his suffering, zeal, holiness, his fruitful
ministry in gaining many thousand souls to Christ.
So, though king James cast him off, and did swear,
by God's name, he intended to be king, (the Prelate
niaketh blasphemy a virtue in the king,) yet king
James swore he could not find an honest minister in
Scotland to be a bishop, and therefore he was neces-
sitated to promote false knaves ; but he said some-
times, and wrote it under his hand, that Mr R. Bruce
was worthy of the half of his kingdom : but will this
prove presbyteries inconsistent with monarchies ?
I should rather think that knave bishops, by king
James' judgment, were inconsistent with monarchies.
25. His lies of Mr R. Bruce, excerpted out of the
lying manuscripts of apostate Spotswood, in that
he would not but preach against the king's recalling
from exile some bloody popish lords to undo all, are
nothing comparable to the incests, adulteries, blas-
phemies, perjuries, Sabbath-breaches, drunkenness,
profanity, &c, committed by prelates before the sun.
26. Our General Assemby is no other than Christ's
court, (Acts xv.) made up of pastors, doctors, and
brethren, or elders.
27. They ought to have no negative vote to impede
the conclusions of Christ in his servants.
28. It is a lie that the king hath no power to ap-
point time and place for the General Assembly ; but
his power is not privative to destroy the free courts
of Christ, but accumulative to aid and assist them.
29. It is a lie that our General Assembly may re-
peal laws ; command and expect performance of the
king, ort.: u excommunicate, subject to them, force
and compii king, judges, and all, to submit to them.
They may not force the conscience of the poorest
beggar, nor is any Assembly infallible, nor can it lay
bounds upon the souls of judges, which they are to
obey with blind obedience — their power is ministe-
rial, subordinate to Christ's law; and what civil laws
parliaments make against God's word, they may
authoritatively declare them to be unlawful, as
though the emperor (Acts xv.) had commanded for-
nication and eating of blood. Might not the Assem-
bly forbid these in the synod ? 1 conceive the pre-
lates, if they had power, would repeal the act of par-
liament made, anno 1641, in Scotland, by his majesty
personally present, and the three estates concerning
the annulling of these acts of parliament and laws
which established bishops in Scotland ; therefore
bishops set themselves as independent monarchs
above kings and laws ; and what they damn in pres-
byteries and assemblies, that they practise them-
selves.
30. Commissioners from burghs, and two from
Edinburgh, because of the largeness of that church,
not for cathedral supercminence, sit in assemblies,
not as sent from burghs, but as sent and authorised
by the church session of the burgh, and so they sit
there in a church capacity.
31. Doctors both in academies and in parishes,
we desire, and our book of discipline holdeth forth
such.
32. They hold, (I believe with warrant of God's
word,) if the king refuse to reform religion, the in-
ferior judges, aud assembly of godly pastors, and
other church-officers may reform ; if the king will
not kiss the Son, and do his duty in purging the
House of the Lord, may not Eliah and the people
do their duty, and cast out Baal's priests. Refor-
mation of religion is a personal act that belongeth
to all, even to any one private person according to
his place.
33. They may swear a covenant without the king,
if he refuse ; and build the Lord's house (2 Chron.
xv. 9) themselves ; and relieve and defend one an-
other, when they are oppressed. For my acts and
duties of defending myself and the oppressed, do not
tye my conscience conditionally, so the king con-
sent, but absolutely, as all duties of the law of na-
ture do. (Jer. xxii. 3; Prov. xxiv. 11 ; Isa. lviii. 6 ;
i. 17.)
34. The P. Prelate condemneth our reformation,
because it was done against the will of our popish
queen. This showeth what estimation he hath of
popery, and how he abhorreth protestant religion.
35. They deposed the queen for her tyranny, but
crowned her son; all this is vindicated in the fol-
lowing treatise.
36. The killing of the monstrous and prodigious
wicked cardinal in the Castle of St Andrews, and
the violence done to the prelates, who against all
law of God and man, obtruded a mass service upon
their own private motion, in Edinburgh anno 1637,
can conclude nothing against presbyterial govern-
ment except our doctrine commend these acts as
lawful.
37. What was preached by the servant of Christ,
whom (p. 46) he calleth the Scottish Pope, is
printed, and the P. Prelate durst not, could not,
cite any thing thereof as popish or unsound, he
knoweth that the man whom he so slandereth,
knocked down the Pope and the prelates.
38. The making away the fat abbacies and bishop-
rics is a bloody heresy to the earthly-minded Prelate ;
the Confession of Faith commended by all the pro-
testant churches, as a strong bar against popery,
and the book of discipline, in which the servants of
God laboured twenty years with fasting and pray-
ing, andfrcquent advice and counsel from the whole
reformed churches, are to the P. Prelate a nega-
tive faith and devout imaginations ; it isa lie that
episcopacy, by both sides, was ever agreed on by law
in Scotland.
39. And it was a heresy that Mr Melvin taught,
that presbyter and bishop are one function in Scrip-
ture, and that abbots and priors were not in God's
books, die ubilegis; and is this a proof of incon-
sistency of presbyteries with a monarchy ?
40. It is a heresy to the P. Prelate that the
church appoint a fast, when king James appointed
an unseasonable feast, when God's wrath was upon
the land, contrary to God's word (Isa. xxii. 12 — 14) ;
and what ! will this prove presbyteries to be incon-
sistent with monarchies ?
41. This Assembly is to judge what doctrine is
treasonable. What then ? Surely the secret coun-
cil and king, in a constitute church, is not synodi-
cally to determine what is true or false doctrine,
more than the Roman emperor could make the
church canon, Acts xv.
42 Mr Gibson, Mr Black, preached against king
James' maintaining the tyranny of bishops, his
sympathizing with papists, and other crying sins,
and were absolved in a general Assembly ; shall this
make presbyteries inconsistent with monarchy ? Nay,
but it proveth only that they are inconsistent with
the wickedness of some monarchies ; and that pre-
lates have been like the four hundred false prophet3
that flattered king Achab, and those men that
preached against the sins of the king and court, by
prelates in both kingdoms, have been imprisoned,
banished, their noses ript, their cheeks burnt, their
ears cut.
43. The godly men that kept the Assembly of
Aberdeen, anno'l603, did stand for Christ's Prero-
gative, when king James took away all General As-
semblies, as the event proved ; and the king may,
with as good warrant, inhibit all Assemblies for
word and sacrament, as for church discipline.
44. They excommunicate not for light faults and
trifles, as the liar saith : our discipline saith the
contrary.
45. This assembly never took on them to choose
the king's counsellors ; but those who were in au-
thority took king James, when he was a child, out
of the company of a corrupt and seducing papist,
Esme Duke of Lennox, whom the P. Prelate nam-
eth noble, worthy, of eminent endowments.
46. It is true Glasgow Assembly, 1637, voted
down the high commission, because it was not con-
sented unto by the church, and yet was a church
judicature, which took upon them to judge of the
doctrine of ministers, and deprive them, and did
encroach upon the liberties of the established law-
ful church judicatures.
47. This Assembly might well forbid Mr John
Graham, minister, to make use of an unjust decree,
it being scandalous in a minister to oppress.
48. Though nobles, barons, and burgesses, that
profess the truth, be elders, and so members of the
general Assembly, this is not to make the church
the house, and the commonwealth the hanging ;
for the constituent members, we are content to be
examined by the pattern of synods, Acts xv. 22, 23.
Is this inconsistent with monarchy ?
49. The commissioners of the General Assembly,
are, 1. A mere occasional judicature. 2. Appointed
by, and subordinate to the General Assembly. 3.
They have the same warrant of God's word, that
messengers of the synod (Acts. xv. 22—27) hath.
50. The historical calumny of the 17th day of De-
cember, is known to all : 1. That the ministers had
any purpose to dethrone king James, and that they
wrote to John L. Marquis of Hamilton, to be king,
because king James had made defection from the
true religion: Satan devised, Spotswood and this P.
Prelate vented this ; I hope the true history of this
is known to all. The holiest pastors, and professors
in the kingdom, asserted this government, suffered
for it, contended with authority only for sin, never
for the power and office. These on the contrary
side were men of another stamp, who minded earth-
ly things, whose God was the world. 2. All the
forged inconsistency betwixt presbyteries and mo-
narchies, is an opposition with absolute monarchy
and concluded with a like strength against parlia-
ments, and all synods of either side, against the law
and gospel preached, to which kings and kingdoms
are subordinate. Lord establish peace and truth.
LEX, REX.
QUESTION I.
WHETHER GOVERNMENT BE WARRANTED BY
A DIVINE LAW.
I reduce all that I am to speak of the
power of kings, to the author or efficient, —
the matter or subject, — the form or power,
— the end and fruit of their government, —
and to some cases of resistance. Hence,
The question is either of government in
general, or of particular species of govern-
ment, such as government by one only,
called monarchy, the government by some
chief leading men, named aristocracy, the
government by the people, going under the
name of democracy. We cannot but put
difference betwixt the institution of the of-
fice, viz. government, and the designation
of person or persons to the office. What is
warranted by the direction of nature's light
is warranted by the law of nature, and con-
sequently by a divine law; for who can deny
the law of nature to be a divine law ?
That power of government in general
must be from God, I make good, 1st, Be-
cause (Rom. xiii, 1) " there is no power
but of God ; the powers that be are or-
dained of God." 2d, God commandeth
obedience, and so subjection of conscience
to powers ; Rom. xiii. 5, " Wherefore ye
must needs be subject, not only for wrath,
(or civil punishment) but also for conscience
sake ;" 1 Pet. ii. 13, " Submit yourselves
to every ordinance of man, for the Lord's
sake, whether it be to the king as supreme,"
&c. Now God only by a divine law can
lay a band of subjection on the conscience,
tying men to guilt and punishment jf they
transgress.
Conckis. All civil power is immediately
from God in its root ; in that, 1st, God
hath made man a social creature, ami one
who inclineth to be governed by man. then
certainly he must have put this power in
man's nature : so are we, by good reason,
taught by Aristotle.1 2d, God and nature
intendeth the policy and peace of mankind,
then must God and nature have given to
mankind a power to compass this end ; and
this must be a power of government. I see
not, then, why John Prelate, Mr Maxwell,
the excommunicated prelate of Ross, who
speaketh in the name of J. Armagh,2 had
reason to say, That he feared that we fan-
cied that the government of superiors was
only for the more perfect, but had no au-
thority over or above the perfect, nee rex,
nee lex, justo posita. He might have im-
puted this to the Brazillians, who teach,
that every single man hath the power of
the sword to revenge his own injuries, as
Molina saith.3
QUESTION II.
WHETHER OR NOT GOVERNMENT BE WAR-
RANTED BY THE LAW OF NATURE.
As domestic society is by nature's instinct,
so is civil society natural in radiec, in the
root, and voluntary in modo, in the man-
ner of coalescing, Politic power of govern-
ment agreeth not to man, singly as one
man, except in that root of reasonable na-
i Aristot. Polit- Iib.l,c.2.
3 Sacro Sane. Reg. Majestas, c. 1, p. 1,
3 Molina, torn. 1, de justit. <Msp. 2g.
B
sAy
ture : but supposing that men be combined
in societies, or that one family cannot con-
tain a society, it is natural that they join in
a civil society, though the manner of union
in a politic body, as Bodine saith,1 be vo-
luntary, Gen. x. 10 ; xv. 7 ; and Suarez
saith,2 That a power of making laws is given
by God as a property flowing from nature,
Qui datformam, dat ronscquentia ad for-
mam ; not by any special action or grant,
different from creation, nor will he have it
to result from nature, while men be united
into one politic body : which union being
made, that power followeth without any new
action of the will.
We are to di-tinguish betwixt a power of
government, and a power of government by
magistracy. That we defend ourselves from
violence by violence is a consequent of un-
broken and sinless nature ; but that we de-
fend ourselves by devolving our power over
in the hands of one or more rulers seemeth
rather positively moral than natural, except
that it is natural for the child to expect help
against violence from his lather : for which
cause I judge that learned senator Ferdin-
andus Vasquius said well,3 That princedom,
empire, kingdom, or jurisdiction hath its
rise from a positive and secondary law of
nations, and not from the law of pure na-
ture. 1st, The law saith4 there is no law
of nature agreeing to all living creatures for
superiority ; for by no reason in nature hath
a boar dominion over a boar, a lion over a
lion, a dragon over a dragon, a bull over a
bull : and if all men be born equally free,
as I hope to prove, there is no reason in na-
ture why one man should be king and lord
over another; therefore while I be other-
wise taught by the aforesaid Prelate Max-
well, I conceive all jurisdiction of man over
man to be as it were artificial and positive,
and that it inferreth some servitude whereof
nature from the womb hath freed us, if you
except that subjection of children Jo parents,
and the wife to the husband ; ami the law
saith,6 De jure gentium secundarius est
btnnis principatus. 2d, This also the
Scripture proveth, while as the exalting of
Saul or David above their brethren to be
i Bodin. de rep. lib. 1, c.6.
2 Suarez, torn. 1, dc legib. lib. 3, c. 3.
3 Vazquez illust. quaest. lib. 1, c. 41, num. 28. 29.
4 lb. lib. 2, in princ. F. de inst. et jur. et in princ.
In«t. Cod. tit. c. jus. nat. 1. disp.
5 Dominium est jus quoddam. lib. fin. ad med. C.
de long. temp, prest. 1, qui u-um fVrt.
kings and captains of the Lord's people, is
ascribed not to nature (for king and beggar
spring of one clay), but to an act of divine
bounty and grace above nature, 1 Sam. xiii.
13; Ps. lxxviii. 70, 71.
1. There is no cause why royalists should
deny government to be natural, but to be
altogether from God, and that the kingly
power is immediately and only from God,
because it is not natural to us to be subject
to government, but against nature for us to
resign our liberty to a king, or any ruler
or rulers; for this is much for us, and
proveth not but government is natural ; it
concludeth that a power of government tali
modo, by magistracy, is not natural ; but
this is but a sophism, a *«« n ad illud
quod est dictum a-x\u%, this special of
government, by resignation of our liberty,
is not natural, therefore, power of govern-
ment is not natural ; it followeth not, a ne-
gatione specici non sequitur negatio ge-
neris, non est homo, ergo non est Animal.
And by the same reason I may, by an an-
tecedent will, agree to a magistrate and a
law, that I may be ruled in a politic soci-
ety, and by a consequent will only, yea, and
conditionally only, agree to the penalty and
punishment of the law ; and it is most true
no man, by the instinct of nature, giveth
consent to penal laws as penal, for nature
doth not teach a man, nor incline his spirit
to yield that his life shall be taken away by
the sword, and his blood shed, except on
this remote ground : a man hath a disposi-
tion that a vein be cut by the physician, or a
member of his body cut off, rather than the
whole body and life perish by some conta-
gious disease ; but here reason in cold blood,
not a natural disposition, is the nearest pre-
valent cause and disposer of the business.
"When, therefore, a community, by the in-
stinct and guidance of nature, incline to
government, and to defend themselves from
violence, they do not, by that instinct, for-
mally agree to government by magistrates ;
and when a natural conscience giveth a de-
liberate consent to good laws, as to this,
" Whoso sheddeth man's blood, by man
shall his blood be shed," Gen. ix. 6, he
doth tacitly consent that his own blood shall
be shed ; but this he consenteth unto conse-
quently, tacitly, and conditionally, — if he
shall do violence to the life of his brother :
yet so as this consent proceedeth not from
a disposition every way purely natural. I
grant reason may be necessitated to assent
THE LAW AND THE PRINCE.
to the conclusion, being, as it wore, forced
by the prevalent power of the evidence of
an insuperable and invincible light in the
premises, yet, from natural affections, there
resulteth an act of self-love for self-preser-
vation. So David shall condemn another
rich man, who hath many lambs, and rob-
beth his poor brother of his one lamb, and
yet not condemn himself, though he be most
deep ia that fault, 1 Sam. xii. 5, 6 ; yet
all this doth not binder, but government,
even by riders, hath its ground in a secon-
dary law of nature, which lawyers call secun-
daria jus naturale, or jus gentium secun-
daria™ ; a secondary law of nature, which is
granted by Plato, and denied by none of
sound judgment in a sound sense, and that
is this, Licet vim virepellere, It is lawful to
repel violence by violence ; and this is a
special act of the magistrate.
2. But there is no reason why we may
not defend by good reasons that political
societies, rulers, cities, and incorporations,
have their rise, and spring from the secon-
dary law of nature. 1st, Because by nature's
law family-government hath its warrant ;
and Adam, though there had never been
any positive law, had a power of governing
his own family, and punishing malefactors;
but as Tannerus saith well,1 and as I shall
prove, God willing, this was not properly a
royal or monarchical power; and I judge by
the reasoning of Sotus,2 Molina,3 and Victo-
ria.4 By what reason a family hath a power
of government, and of punishing malefac-
tors, that same power must be in a society
of men, supposing that society were not
made up of families, but of single persons ;
for the power of punishing ill-doers doth
not reside in one single man of a family, or
in them all, as they are single private per-
sons, but as they are in a family. But this
argument holdeth not but by proportion ; for
paternal government, or a fatherly power
of parents over their families, and a politic
power of a magistrate over many families,
are powers different in nature, — the one be-
ing warranted by nature's law even in its
species, the other being, in its specie and
kind, warranted by a positive law, and, in
the general only, warranted by a law of na-
ture. 2d, If we once lay the supposition,
1 Ad Tannerus, m. 12, torn. 2, disp. 5. de peccatis,
q. 5, dub. 1, num. 22.
2 Sotus, 4. de justit. q. 4, art. 1.
3 Lod. Molina, torn. 1, de just. disp. 22.
4 Victoria in relect. de potest civil, q. 4, art, 1.
that God hath immediately by the law of
nature appointed there should be a govern-
ment, and mediately defined by the dictate
of natural light in a community, that there
shall be one or many rulers to govern a com-
munity, then the Scripture's arguments may
well be drawn out of the school of nature :
as, (1,) The powers that be, are of God
(Rom. xii.), therefore nature's light teach-
eth that we should be subject to these
powers. (2.) It is against nature's light to
resist the ordinance of God. (3.) Not to
fear him to whom God hath committed the
sword for the terror of evil-doers. (4.) Not
to honour the public rewarder of well-doing.
(5.) Not to pay tribute to him for his work.
Therefore I see not but Govarruvias,1 Soto,2
and Suarez,3 have rightly said, that power
of government is immediately from God, and
this or that definite power is mediately from
God, proceeding from God by the mediation
of the consent of a community, which resign-
eth their power to one or more rulers ; and
to me, Barclaius saith the same,4 Quamvis
populus potcntice largitor videatur, &c.
QUESTION III.
WHETHER ROYAL POWER AND DEFINITE
FORMS OF GOVERNMENT BE FROM COD.
The king may be said to be from God
and his word in these several notions : —
1. By way of permission, Jer. xliii. 10,
" Say to them, Thus saith the Lord of hosts,
the God of Israel, Behold I will send and
take Nebuchadnezzar the king of Babylon,
my seivant, and will set his throne upon
these stones that I have hid, and he shall
spread his royal pavilion over them.*' And
thus God made him a catholic king, and gave
him all nations to serve him, Jer. xxvii. 6
— 8, though he was but an unjust tyrant,
and his sword the best title to those crowns.
2. The king is said to be from God by
way of naked approbation ; God giving to a
people power to appoint what government
they shall think good, but instituting none
in special in his word. This way some
make kingly power to be from God in the
i (iovarruvias, tr. 2, praet. quest. 1, n. 2, 3, 4.
2 Soto, loc. ett.
3 Suarez de Reg. lib. 3, c. 4, n. 1, 2
4 Barclaius con. Monavchoma, 1. 3, c. 2.
Lex, rex ; or,
general, but in the particular to be an in-
vention of men, negatively lawful, and not
repugnant to the word, as the wretched
popish ceremonies are from God. But we
teach no such thing : let Maxwell1 free his
master Bellarmine,8 and other Jesuites with
whom he sideth in Romish doctrine : we
are free of this. Bellarmine saith that po^
litic power in general is warranted by a di-
vine law ; but the particular forms of politic
power, (he meaneth monarchy, with the
first,) is not by divine right, but de jure
gentium, by the law of nations, and floweth
immediately from human election , as all
things, saith he, that appertain to the law
of nations. So monarchy to Bellarmine is
but an human invention, as Mr Maxwell's
surplice is ; and Dr Feme, sect. 3, p. 13,
saith with Bellarmine.
3. A king is said to be from God, by
particular designation, as he appointed Saul
by name for the crown of Israel. Of this
hereafter.
4. The kingly or royal office is from God
by divine institution, and not by naked
approbation ; for, 1st, we may well prove
Aaron's priesthood to be of divine institu-
tion, because God doth appoint the priest's
qualification from his family, bodily perfec-
tions, and his charge. 2d, We take the
pastor to be by divine law and God's insti-
tution, because the Holy Ghost (1 Tim. iii.
1 — 4) describeth his qualifications ; so may
we say that the royal power is by divine in-
stitution, because God mouldeth him : Deut.
xvii. 15, " Thou shalt in any wise set him
king over thee, whom the Lord thy God
shall choose, one from amongst thy breth-
ren," &c. ; Rom. xiii. 1, " There is no power
but of God, the powers that be arc ordained
iii' God." 3d, That power must be ordained
of God as his own ordinance, to which we
owe subjection for conscience, and not for
fear of punishment ; but every power is
such, Rom. xiii. 4th, To resist the kingly
} lower is to resist God. 5th, He is the min-
ister of God for our good. 6th, He beareth
the sword of God to take vengeance upon
ill-doers. 7th, The Lord expressly saith,
1 Pet. ii. 17, " Fear God, honour the king ;"
ver. 13, 14, " Submit yourselves to every
ordinance of man for the Lord's sake, whe-
1 Xacrosan. Reg. Maj. the Sacred and Royal Pro-
bative of Christian kin^s, c. 1, q.l, p. 6, 7.
- Bellarm. de loris, lib. 5, c. 6, not. 5. Politira
universe considerata est de jure divino, in particu-
lari considerata est de jure gentium.
ther it be to the king as supreme, or unto
governors, as those that are sent by him,'*
&c. ; Tit. iii. 1, " Put them in mind to be
subject to principalities and powers ;" and so
the fifth commandment layeth obedience to
the king on us no less than to our parents ;
whence, I conceive that power to be of God,
to which, by the moral law of God, we owe
perpetual subjection and obedience. 8th,
Kings and magistrates are God's, and God's
deputies and lieutenants upon earth, (Psalm
lxxxii. 1, 6, 7 ; Exod. xxh\ 8 ; iv. 16,) and
therefore their office must be a lawful ordi-
nance of God. 9th, By their office they are
feeders of the Lord's people, Psalm lxxviii.
70—72, the shields of the earth, Psal. xlvii.
9, nursing fathers of the church, Psal. xlix.
23, captains over the Lord's people, 1 Sam,
ix. 19i 10th, It is a great judgment of
God when a land wanteth the benefit of such
ordinances of God, Isa, iii. 1 — 3, 6, 7, 11.
The execution of their office is an act of the
just Lord of heaven and earth, not only by
permission, but according to God's revealed
will in his word ; their judgment is not the
judgment of men, but of the Lord, 2 Chron.
xix. 6, and their throne is the throne of
God, 1 Chron. xxii. 10. Jerome saith,3 to
punish murderers and sacrilegious persons is
not bloodshed, but the ministry and service
of good laws. So, if the king be a living
law by office, and the law put in execution
which God hath commanded, then, as the
moral law is by divine institution, so must
the officer of God be, who is custos et vin-
dex legis divinoS, the keeper, preserver,
and avenger of God's law, Basilius saith,2
this is the prince's office, Ut opem ferat
virtu ti, malitiam vcro impugnet. When
Paulinus Treverensis, Lucifer Metropolis
tane of Sardinia, Dionysius Mediolanensis,
and other bishops, were commanded by
Constantine to write against Athanasius,
they answered, Regnum non ipsius esse,
sted dei, a quo acceperit, — the kingdom was
God's, not his ; as Athanasius saith,3 Opta-
tus Milevitanus4 helpeth us in the cause,
where he saith with Paul, " We are to pray
for heathen kings," The genuine end of
the magistrate, saith Epiphanius,5 is ut ad
bouinii ordinem uuivcrsitatis raundi omnia
ex deo bene disponautur atque admmistre.n-
1 Jerome in 1.4, Comment, in Jerein.
a Basilius, epist. 125.
3 Athanasius, epist. ad solita.
J Optat. Melevitanuih lib. 3.
5 Epiphanius, lib. 1, torn. 3, Hcres. i.0.
THE LAW AND THE PRINCE.
tur. But some object, It' the kingly power
be of divine institution, then shall any other
government be unlawful, and contrary to a
divine institution, and so we condemn aris-
tocracy and democracy as unlawful. Ans.
This consequence were good, if aristocracy
and democracy wei*e not also of divine insti-
tution, as all my arguments prove ; for I
judge they are not governments different in
nature, if we speak morally and theologi-
cally, only they differ politically and posi-
tively ; nor is aristocracy any thing but
diffused and enlarged monarchy, and mo-
narchy is nothing but contracted aristocracy,
even as it is the same hand when the thumb
and the four fingers are folded together and
when all the five fingers are dilated and
stretched out ; and wherever God appoint-
ed a king he never appointed him absolute,
and a sole independent angel, but joined al-
ways with him judges, who were no less to
judge according to the law of God (2 Chron.
xix. 6,) than the king, Deut. xvii. 15. And
in a moral obligation of judging righteous-
ly, the conscience of the monarch and the
conscience of the inferior judges are equally
under immediate subjection to the King
of kings ; for there is here a co-ordination
of consciences, and no subordination, for it
is not in the power of the inferior judge to
judge, quoad specijicationan, as the king
commandeth him, because the judgment is
neither the king's, nor any mortal man's,
but the Lord's, 2 Chron. xix. 6, 7.
Hence all the three forms are from God ;
but let no man say, if they be all indiffer-
ent, and equally of God, societies and king-
doms are left in the dark, and know not
which of the three they shall pitch upon,
because God hath given to them no special
direction for one rather than for another.
But this is easily answered. 1st, That a re-
public appoint rulers to govern them is not
an indifferent, but a moral action, because
to set no rulers over themselves I conceive
were a breach of the fifth commandment,
•which commandeth government to be one
or other. 2d, It is not in men's free will
that they have government or no govern-
ment, because it is not in their free will
to obey or not to obey the acts of the court
of nature, which is God's court ; and this
court enacteth that societies suffer not man-
kind to perish, which must necessarily fol-
low if they appoint no government ; also it
is proved elsewhere, that no moral acts, in
their exercises and use, are left indifferent
to us ; so then, the aptitude and temper of
every commonwealth to monarchy, rather
than to democracy or aristocracy, is God's
warrant and nearest call to determine the
wills and liberty of people to pitch upon a
monarchy, hie et nunc, rather than any
other form of government, though all the
three be from God, even as single life and
marriage are both the lawful ordinances of
God, and the constitution and temper of the
body is a calling to either of the two ; nor
are we to think that aristocracy and de-
mocracy are either unlawful ordinances, or
men's inventions, or that those societies
which want monarchy do therefore live in
sins.
But some say that Peter calleth any
form of government an human ordinance,
1 Pet. ii. 13, M^Tivn xrleis, therefore mo-
narchy can be no ordinance of God. Ans.
Bivetus saith,1 — " It is called an ordinance
of man, not because it is an invention of
man, and not an ordinance of God, but re-
spectu subjecti;" Piscator,2— " Not because
man is the efficient cause of magistracy, but
because they are men who are magistrates ;"
Diodatus,3 — " Obey princes and magistrates,
or governors made by men, or amongst men ;"
Oecumenius,* — " An human constitution,
because it is made by an human disposition,
and created by human suffrages ;" Dydimus,
— Because over it " presides presidents made
by men ;" Cajetanus,6 Estius,7 — " Every
creature of God (as, preach the gospel to
every creature) in authority." But I take
the word, " every creature of man," to be
put emphatically, to commend the worth of
obedience to magistrates, though but men,
when we do it for the Lord's sake ; there-
fore Betrandus Cardinalis Ednen.-ds saith,8
" He speaketh so for the more necessity of
merit ;" and Glossa Ordinaria saith, " Be
subject to all powers, etiam ex injidelibus
et ineredulis, even of infidels and unbe-
lievers." Lyranus, — " For though they be
men, the image of God shineth in them ;"
and the Syriac, as Lorinus saith;8 leadeth us
thereunto, K^tf ^2 HnS^S Lechulle-
chum benai anasa : Obey all the children of
1 Rivetus in decal. Mand. 5, p. 194.
2 Piscator in loc. 3 Diodatus, annot.
* Occumenius quod horuinum disijositiono con-
sistit, et liumanis suffragiis creatur.
o Cajetanus, officium regiminis, quia humanis
suffragiis creatur.
6 Kstius in loc. 7 Betrandus, torn. 4, Bib.
8 Lorin. in. lo.
LEX, REX ; OR,
men that are in authority. It is an ordinance
of men, not effectively, as if it were an inven-
tion and a dream of men ; but subjectively,
because exercised by man. Objectively, and
tiXikus, for the good of men, and for the ex-
ternal man's peace and safety especially ;
whereas church -officers are for the spiri-
tual good of men's souls. And Durandus
saith well,1 " Civil power according to its
institution is of God, and according to its
acquisition and way of use is of man." And
we may thus far call the forms of magis-
trates a human ordinance, — that some ma-
gistrates are ordained to care for men's lives
and matters criminal, of life and death, and
some for men's lands and estates ; some for
commodities by sea, and some by land ; and
are thus called magistrates according to these
determinations or human ordinances.
QUESTION IV.
WHETHER THE RING BE ONLY AND IMME-
DIATELY FROM GOD, AND NOT FROM THE
PEOPLE.
That this question may be the clearer we
are to set down these considerations : —
1. The question is, Whether the kingly
office itself come from God. I conceive it
is, and floweth from the people, not by for-
mal institution, as if the people had by an
act of reason devised and excogitated such
a power : God ordained the power. It is
from the people only by a virtual emana-
tion, in respect that a community having no
government at all may ordain a king or ap-
point an aristocracy. But the question is
concerning the designation of the person :
Whence is it that this man rather than
that man is crowned king ? and whence is
it — from God immediately and only — that
this man rather than that man, and this
race or family rather than that race and
family, is chosen for the crown ? Or is it
from the people also, and their free choice ?
For the pastor's and the doctor's office is
from Christ only ; but that John rather
than Thomas be the doctor or the pastor is
from the will and choice of men — the pres-
byters and people.
2. The royal power is three ways in the
people : 1st, Radically and virtually, as in
Durandus lib. de orig. juris.
the first subject. 2d, Collative vcl com-
municative, by way of free donation, they
giving it to this man, not to that man, that
he may rule over them. 3d, Limitate, —
they giving it so as these three acts re-
main with the people. (1.) That they may
measure out, by ounce weights, so much
royal power, and no more and no less. (2.) |
So as they may limit, moderate, and set
banks and marches to the exercise. (3.)
That they give it out, couditionate, upon
this and that condition, that they may take
again to themselves what they gave out
upon condition if the condition be violated.
The first I conceive is clear, 1st, Because
if all living creatures have radically in
them a power of self-preservation, to defend
themselves from violence, — as we see lions
have paws, some beasts have horns, some
claws, — men being reasonable creatures,
united in society, must have power in a
more reasonable and honourable way to put
this power of warding off violence in the
hands of one or more rulers, to defend
themselves by magistrates. 2d, If all men
be born, as concerning civil power, alike, — ■
for no man cometh out of the womb with a
diadem on his head or a sceptre in his hand,
and yet men united in a society may give
crown and sceptre to this man and not to
that man, — then this power was in this
united society, but it was not in them for-
mally, for they should then all have been
one king, and so both above and superior,
and below and inferior to themselves, which
we cannot say ; therefore this power must
have been virtually in them, because neither
man nor community of men can give that
which they neither have formally nor vir-
tually in them. 3d, Royalists cannot deny
but cities have power to choose and create
interior magistrates ; therefore many cities
united have power to create a higher ruler ;
for royal power is but the united and super-
lative power of inferior judges in one greater
judge whom they call a king.
Conclus. The power of creating a man
a king is from the people.
1. Because those who may create this man
a king rather than that man have power
to appoint a king ; for a comparative action
doth positively infer an action. If a man
have power to marry this woman and not
that woman, we may strongly conclude that
he hath power to marry ; now, 1 Kings xvi.
the people made Omri king and not Ziniri,
and his son Achab rather than Tibui the
THE LAW AND THE PRINCE.
son of Sinath. Nor can rt be replied that
this was no lawful power that the people
used, for that cannot elude the argument ;
for (1 Kings i.) the people made Solomon
king and not Adonijah, though Adonijah
was the elder brother. They say, God did
extraordinarily both make the office, and
design Solomon to be king, — the people
had no hand in it, but approved God's act.
Arts. This is what we say, God by the
people, by Nathan the prophet, and by the
servants of David and the states crying,
" God save king Solomon ! " made Solomon
king ; and here is a real action of the peo-
ple. God is the first agent in all acts of the
creature. "Where a people maketh choice
of a man to be their king, the states do no
other thing, under God, but create this man
rather than another; and we cannot here
find two actions, one of God, another of the
people ; but in one and the same action,
God, by the people's free suffrages and
voices, createth such a man king, passing
by many thousands ; and the people are not
passive in the action, because by the autho-
ritative choice of the states the man is made
of a private man and no king, a public per-
son and a crowned king : 2 Sam. xvi. 18,
" Hushai said to Absalom, Nay, but whom
the Lord and the people, and all the men
of Israel choose, his will I be, and with him
will I abide ;" Judg. viii. 22, " The men of
Israel said to Gideon, Rule thou over us ;"
Judg. ix. 6, " The men of Sechem made
Abimelech king;" Judg. xi. 8, 11 ; 2 Kings
xiv. 21, " The people made Azariah king ;"
1 Sam. xii. 1 ; 2 Chron. xxiii. 3.
2. If God doth regulate his people in
making this man king, not that man, then
he thereby insinuateth that the people have
a power to make this man king, and not
that man. But God doth regulate his
people in making a king ; therefore the
people have a power to make this man king,
not that man king. The proposition is
clear, because God's law doth not regulate
a non-ens, a mere nothing, or an unlawful
power ; nor can God's holy law regulate an
unlawful power, or an unlawful action, but
quite abolish and interdict it. The Lord
setteth not down rules and ways how men
should not commit treason, but the Lord
commandeth loyalty, and simply interdict-
eth treason. If people have then more
power to create a king over themselves
than they had to make prophets, then God
forbidding them to choose such a man for
their king should say as much to his people
as if he would say, " I command you to
make Isaiah and Jeremiah prophets over
you, but not these and those men." This,
certainly, should prove that not God only,
but the people also, with God, made pro-
phets. I leave this to the consideration of
the godly. The prophets were immediately
called of God to be prophets, whether the
people consented that they should be pro-
phets or not ; therefore God immediately
and only sent the prophets, not the people ;
but though God extraordinarily designed
some men to be kings, and anointed them
by his prophets, yet were they never ac-
tually installed kings till the people made
them kings. I prove the assumption, Deut.
xvii. 14, 15, " When thou shaft say, I will
set a king over me, like as all the nations
that are about me, thou shalt in any wise
set him king over thee whom the Lord thy
God shall choose ; one from amongst thy
brethren shalt thou set king over thee : thou
mayest not set a stranger over thee, which
is not thy brother." Should not this be an
unjust charge to the people, if God only,
without any action of the people, should
immediately set a king over them ? Might
not the people reply, We have no power at
all to set a king over ourselves, more than
we have power to make Isaiah a prophet,
who saw the visions of God. To what end
then should God mock us, and say, " Make
a brother and not a stranger king over you ?"
3. Expressly Scripture saith, that the
people made the king, though under God :
Judg. ix. 6, " The men of Sechem made
Abimelech king ;" 1 Sam. xi. 15, " And
all the people went to Gilgal, and there
they made Saul king before the Lord ;"
2 King. x. 5, " We will not make any
king." This had been an irrational speech
to Jehu if both Jehu and the people held
the royalists' tenet, that the people had no
power to make a king, nor any active or
causative influence therein, but that God
immediately made the king : 1 Chron. xii.
38, " All these came with a perfect heart
to make David king in Hebron ;" and all
the rest were of one heart to make David
king. On these words Lavater saith,1 The
same way are magistrates now to be chosen ;
now this day God, by an immediate oracle
1 Lavater com. in part 12, 38. Hodie quoque in
liberis urbibus, et gentibus, magistratus secundum
dei verbum, Exod. xviii., Deut. i., eligendi sunt, non
ex affectibus.
I. 'A, REX ; OR,
from heaven, appointeth the office of a king,
but I am sure he doth not immediately de-
sign the man, but doth only mark him out
to the people as one who hath the most royal
endowments, and the due qualifications re-
quired in a lawful magistrate by the word
of God : Exod. xviii. 21, " Men of truth,
hating covetousness," &c. ; Deut. i. 16, 17,
Men who will judge causes betwixt their
brethren righteously, without respect of per-
sons ; 1 Sam. x. 2l, Saul was chosen out of
the tribes according to the law of God ;
Deut. xvii., They might not choose a stran-
ger ; and Abulensis, Serrarius, Cornelius
a Lapide, Sancheiz, and other popish wri-
ters, think that Saul was not only anointed
with oil first privately by Samuel, (1 Sam.
x. 1, 2,) but also at two other times before
the people, — once at Mizpeh, and another
time at Gilgal, by a parliament and a con-
vention of the states. And Samuel judged
the voices of the people so essential to make
a king that Samuel doth not acknowledge
him as formal king, (1 Sam. x. 7, 8, 17,
18, 19,) though he honoured him because
he was to be king, (1 Sam. ix. 23, 24,)
while the tribes of Israel and parliament
were gathered together to make him king-
according to God's law, (Deut. xvii.) as is
evident. 1st, For Samuel (1 Sam. v. 20,)
caused all the tribes of Israel to stand be-
fore the Lord, and the tribe of Benjamin
was taken. The law provided one of their
own, not a stranger to reign over them ;
and, because some of the states of parlia-
ment did not choose him, but, being chil-
dren of Belial, despised him in their hearts,
(v. 27,) therefore after king Saul, by that
victory over the Ammonites, had conquered
the affections of all the people fully, (v. 10,
11,) Samuel would have his coronation and
election by the estates of parliament re-
newed at Gilgal by all the people, (v. 1-1,
15,) to establish him king. 2d, The Lord
by lots found out the tribe of Benjamin.
3d, The Lord found out the man, by name,
Saul the son of Kish, when he did hide
himself amongst the stuff, that the people
might do their part in the creating of the
king, whereas Samuel had anointed him
before. But the text saith expressly that
the people made Saul king ; and Calvin,
Martyr, Lavater, and popish writers, as
Serrarius, Mendoza, Sancheiz, Cornelius a
Lapide, Lyranus, Hugo Cardinalis, Carthu-
sius, Sanctius, do all hence conclude that
the people, under God, make the king.
I see no reason why Barclaius should
here distinguish a power of choosing a king,
which he granteth the people hath, and a
power of making a king, which he saith is
only proper to God.1 Ans. Choosing of a
king is either — a comparative crowning of
this man, not that man ; and if the people
have this it is a creating of a king under
God, who principally disposeth of kings and
kingdoms ; and this is enough for us. The
want of this made Zimri no king, and those
whom the rulers of Jezreel at Samaria (2
King, x.) refused to make kings, no kings.
This election of the people made Athaliah
a princess ; the removal of it, and translation
of the crown by the people to Joash made
her no princess : for, I ask you, what other
calling of God hath a race of a family,
and a person to the crown, but only the
election of the states ? There is now no
voice from heaven, no immediately inspired
prophets such as Samuel and Elisha, to
anoint David, not Eliab, — Solomon, not
Adonijah. The ^W^'s or the heroic spirit
of a royal faculty of governing, is, I grant,
from God only, not from the people ; but
I suppose that maketh not a king, for then
many sitting on the throne this day should
be no kings, and many private persons
should be kings. If they mean by the peo-
ple's choosing nothing but the people's ap-
probative consent, posterior to God's act of
creating a king, let them show us an act of
God making kings, and establishing royal
power in this family rather than in that
family, which is prior to the people's con-
sent,— distinct from the people's consent I
believe there is none at all.
Hence I argue : If there be no calling
or title on earth to tie the crown to such a
family and person but the suffrages of the
people, then have the line of such a family,
and the persons now, no calling of God, no
right to the crown, but only by the suffrages
of the people, except we say that there be
no lawful kings on earth now when prophe-
tical unction and designation to crowns are
ceased, contrary to express scripture : Bom.
xiii. 1—3 ; 1 Pet. ii. 13—17.
But there is no title on earth how to tie
crowns to families, to persons, but only the
suffrages of the people : for, 1st, Conquest
without the consent of the people is but
royal robbery, as we shall see. 2d, There
is no prophetical and immediate calling to
1 Barclaius, lib. 3, cont. Monarchoraach. 8. c. 3.
THE LAW .VXD THE PRINCE.
kingdoms now. 3d, The Lord's giving of
regal parts is somewhat ; but I hope roy-
alists will not deny but a child, young in
years and judgment, may be a lawful king.
4th, Mr Maxwell's appointing of the kingly
office doth no more make one man a lawful
king than another; for this were a wide
consequence. God hath appointed that
kings should be ; therefore John a Stiles is
a king ; yea, therefore David is a king. It
followeth not. Therefore it remaineth only
that the suffrages of the people of God is
that just title and divine calling that kings
have now to their crowns. I presuppose
they have gifts to govern from God.
If the Lord's immediate designation of
David, and his anointing by the divine au-
thority of Samuel, had been that which
alone, without the election of the people,
made David formally king of Israel, then
there were two kings in Israel at one time ;
for Samuel anointed David, and so he was
formally king upon the ground laid by roy-
alists, that the king hath no royal power
from the people ; and David, after he him-
self was anointed by Samuel, divers times
calleth Saul the Lord's anointed, and that
by the inspiration of God's Spirit, as we
and royalists do both agree. Now two law-
ful supreme monarchs in one kingdom I
conceive to be most repugnant to God's
truth and sound reason ; for they are as re-
pugnant as two most highs or as two in-
finites. It shall follow that David all the
while betwixt his anointing by Samuel and
his coronation by the suffrages of all Israel
at Hebron, was in-lacking in discharging
and acquitting himself of his royal duty,
God having made him formally a king, and
so laying upon him a charge to execute
justice and judgment, and defend religion,
which he did not discharge. All David's
suffering, upon David's part, must be unr
just, for, as king, he should have cut off
the murderer Saul, who killed the priests of
the Lord ; especially, seeing Saul, by this
ground, must be a private murderer, and
David the only lawful king. David, if he
was formally king, deserted his calling in
flying to the Philistines ; for a king should
not forsake his calling upon any hazard,
even of his life, no more than a pilot should
give over the helm in an extreme storm ;
but certainly God's dispensation in this war-
ranteth us to say, no man can be formally
a lawful king without the suffrages of the
people : for Saul, after Samuel from the
Lord anointed him, remained a private
man, and no king, till the people made him
king, and elected him ; and David, anointed
by that same divine authority, remained
formally a subject, and not a king, till all
Israel made him kinoj at Hebron ; and So-
lomon, though by God designed and or-
dained to be king, yet was never king un-
til the people made him so, (1 Kings i.) ;
therefore there floweth something from the
power of the people, by which he who is no
king now becometh a king formally, and by
God's lawful call ; whereas before the man
was no king, but, as touching all royal
power, a mere private man, And I am
sure birth must be less than God's desigv
nation to a crown, as is clear, — Adonijah
was older than Solomon, yet God will have
Solomon, the younger by birth, to be king,
and not Adonijah. And so Mr Symons,
and other court prophets, must prevaricate,
who will have birth, without the people's
election, to make a king, and the people's
voices but a ceremony.
I think royalists cannot deny but a peo=-
pie ruled by aristocratic magistrates may
elect a king, and a king so elected is for-
mally made a lawful king by the people's
election ; for of six willing and gifted to
reign, what maketh one a king and not the
other five ? Certainly by God's disposing
the people to choose this man, and not an-
other man. It cannot be said but God giveth
the kingly power immediately ; and by him
kings reign, that is true. The office is im-
mediately from God, but the question now
is, What is that which formally applieth
the office and royal power to this person
rather than to the other fiye as meet ?
Nothing can here be dreamed of but God's
inclining the hearts of the states to choose
this man and not that man.
QUESTION V.
WHETHER OR NO THE POPISH PRELATE, THE
AUTHOR OF " SAC. SAN. REGUM MAJESTAS,"
CALLED THE SACRED AND ROYAL PRERO-
GATIVE OF KINGS, PROVETH THAT GOD IS
THE IMMEDIATE AUTHOR OF SOVEREIGNTY,
AND THAT THE KING IS NO CREATURE OF
THE PEOPLE'S MAKING.
Consider, 1. That the excommunicated
prelate saith, (c. 2, p. 19,) " Kings are not
D
10
LEX, REX : OR,
immediately from God as by any special or-
dinance sent from heaven by the ministry of
angels and prophets ; there were but some
few such ; as Moses, Saul, David, &c. ; yet
something may immediately proceed from
God, and be his special work, without a re-
velation or manifestation extraordinary from
heaven ; so the designation to a sacred func-
tion is from the church and from man, yet
the power of word, sacraments, binding and
loosing, is immediately from Jesus Christ.
The "apostle Matthias was from Christ's
immediate constitution, and yet he was de-
signed by men, Acts i. The soul is by
creation and infusion, without any special
ordinance from heaven, though nature be-
getteth the body, and disposeth the matter,
and prepareth it as fit to be conjoined with
the soul, so as the father is said to beget the
son." Arts. 1st, The unchurched Prelate
striveth to make us hateful by the title of
the chapter, — That God is, by his title, the
immediate author of sovereignty ; and who
denieth that? Not those who teach that
the person who is king is created king by
the people, no more than those who deny
that men are now called to be pastors and
deacons immediately, and by a voice from
heaven, or by the ministry of angels and
prophets, because the office of pastors and
deacons is immediately from God. 2d,
When he hath proved that God is the im-
mediate author of sovereignty, what then ?
Shall it follow that the sovereign in concrcto
may not be resisted, and that he is above all
law, and that there is no armour against his
violence but prayers and tears? Because
God is the immediate author of the pastor
and of the apostle's office, does it therefore
follow that it is unlawful to resist a pastor
though he turn robber ? If so, then the
pastor is above all the king's laws. This is
the Jesuit and all made, and there is no ar-
mour against the robbing prelate but prayer
and tears.
2. He saith in his title, that " the king is
no creature of the people's making." If he
mean the king in the abstract, that is, the
royal dignity, whom speaketh he against?
Not against us, but against his own father,
Bellarmine, who saith,1 that "sovereignty
hath no warrant by any divine law." If he
mean that the man who is king is not cre-
ated and elected king by the people, he con-
tradicteth himself and all the court doctors.
Bellarmine, lib. 5, c. 6, not 5, de Laicis
3. It is false that Saul and David's call
to royalty was only from God, " by a special
ordinance sent from heaven," for their office
is (Deut. xvii. 14) from the written word of
God, as the killing of idolaters, (ver. 3, 7,)
and as the office ot the priests and Levites,
(ver. 8 — 10,) and this is no extraordinary
office from heaven, more than that is from
heaven which is warranted by the word of
God. If he mean that these men, Saul and
David, were created kings only by the ex-
traordinary revelation of God from heaven,
it is a lie ; for besides the prophetical anoint-
ing of them, they were made kings by the
people, as the Word saith expressly ; except
we say that David sinned in not setting him-
self down on the throne, when Samuel first
anointed him king ; and so he should have
made away with his master, king Saul, out
of the world ; and there were not a few
called to the throne by the people, but
many, yea, all the kings of Israel and of
Judah.
4. The prelate contendeth that a king is
designed to his royal dignity " immediately
from God, without an extraordinary revela-
tion from heaven," as the man is " designed
to be a pastor by men, and yet the power of
preaching is immediately from God," &c. ;
but he proveth nothing, except he prove
that all pastors are called to be pastors im-
mediately, and that God callcth and design-
eth to the office such a person immediately
as he hath immediately instituted by the
power of preaching and the apostleship, and
hath immediately infused the soul in the
body by an act of creation ; and we cannot
conceive how God in our days, when there
are no extraordinary revelations, doth im-
mediately create this man a king, and im-
mediately tie the crown to this family rather
than to that. This he doth by the people
now, without any prophetical unction, and
by this medium, viz., the free choice of the
people. He need not bring the example of
Matthias more than of any ordinary pastor ;
and yet an ordinary pastor is not immediate-
ly called of God, because the office is from
God immediately, and also the man is made
pastor by the church.
The P. Prelate saith, (c. 2, p. 20—23,)
A thing is immediately from God three
ways. 1st, When it is solely from God, and
presupposeth nothing ordinary or human an-
tecedent to the obtaining of it. Such was
the power of Moses, Saul and David ; such
were the apostles. 2d, When the collation
THE LAW AND THE PRINCE.
of the power to such a person is immediately
from God, though some act of man be ante-
cedent, as Matthias was an apostle. A bap-
tised man obtaineth remission and regenera-
tion, yet aspersion of water cannot produce
these excellent effects. A king giveth power
to a favourite to make a lord or a baron, yet
who is so stupid as to aver, that the honour
pf a lord cometh immediately from the fa-
vourite and not from the king. 3d, When
a man hath, by some ordinary human right,
a full and just right, and the approbation
and confirmation of this right is immediate-
ly from God.
The first way, sovereignty is not from
God. The second way, sovereignty is con-
ferred on kings immediately : though some
created act of election, succession or con-
quest intervene, the interposed act contain-
eth not in it power to confer sovereignty ;
as in baptism, regeneration, if there be no-
thing repugnant in the recipient, is con-
ferred, not by water, but immediately by
God. In sacred orders, designation is from
men, power to supernatural acts from God.
Election, succession, conquests, remotely and
improperly constitute a king. To say in the
third sense, that sovereignty is immediately
from God by approbation or confirmation
only, is against Scripture, Prov. viii. 15 ;
Psal. lxxxvih. 8 ; John xix. ; then the peo-
ple say, You are God's, your power is from
below. And Paul's " ordained of God," is
" approved and confirmed only of God ;" the
power of designation, or application of the
person to royalty, is from man ; the power
of conferring royal power, or of applying the
person to royal power, is from God. A
man's hand may apply a faggot to the fire,
the fire only maketh the faggot to burn.
Answer. 1st, Apostles, both according to
their office and the designation of their per-
son to the office, were immediately and only
from God, without any act of the people,
and therefore are badly coupled with the
royal power of David and king Saul, who
were not formally made kings but by the
people at Mizpeh and Hebron. 2d, The se-
cond way God giveth royal power, by mov-
ing the people's hearts to confer royal power,
and this is virtually in the people, formally
from God. Water hath no influence to pro-
duce grace, God's institution and promise
doth it ; except you dream with your Je-
suits, of opus operatum, that water sprin-
kled, by the doing of the deed, conferreth
grace, nisi ponatur obex, what can the child
11
do, or one baptised child more than another,
to hinder the flux of remission of sins, if you
mean not that baptism worketh as physic on
a sick man, except strength of humours hin-
der ? and therefore this comparison is not
alike. The people cannot produce so noble
an effect as royalty, — a beam from God.
True, formally they cannot, but virtually
it is in a society of reasonable men, in whom
are left beams of authoritative majesty, which
by a divine institution they can give (Deut.
xvii. 14) to this man, to David, not to Eliab.
And I could well say the favourite made the
lord, and placed honour in the man whom
he made lord, by a borrowed power from
his prince ; and yet the honour of a lord is
principally from the king. 3. It is true the
election of the people containeth not formal-
ly royal dignity, but the Word saith, they
made Saul, they made David king ; so vir-
tually election must contain it. Samuel's
oil maketh not David king, he is a subject
after he is anointed ; the people's election
at Hebron maketh him king, differeth him
from his brethren, and putteth him in royal
state ; yet God is the principal agent. What
immediate action God hath here, is said and
dreamed of, no man can divine, except Pro-
phet P. Prelate. The i?««r«s, royal author-
ity, is given organically by that act by which
he is made king : another act is a night-
dream, but by the act of election, David is
of no king, a king. The collation of $vvaf£iS}
royal gifts, is immediately from God, but
that formally maketh not a king, if Solo-
mon saw right, " servants riding on horses,
princes going on foot." 4th, Judge of the
Prelate's subtflty, — I dare say not his own ;
he stealeth from Spalato, but telleth it not,
— " The applying of the person to royal au-
thority is from the people; but the applying
of royal authority to the person of the kino-,
is immediately and only from God ; as the
hand putteth the faggot to the fire, but the
fire maketh it burn." To apply the subject
to the accident, is it any thing else but to
apply the accident to the subject ? Royal
authority is an accident, the person of the
king the subject. The applying of the fag-
got to the fire, and the applying of the fire
to the faggot, are all one, to any one not
forsaken of common sense. When the peo-
ple applyeth the person to the royal autho-
rity, they but put the person in the state of
royal authority ; this is to make an union
betwixt the man and royal authority, and
this is to apply royal authority to the per-
12
LEX, REX ; OR,
son. 5th, The third sense is the Prelate's
dream, not a tenet of ours. We never said
that sovereignty in the king is immediately
from God by approbation or confirmation
only, as if the people first made the king,
and God did only by a posterior and latter
act say Amen to the deed done, and sub-
scribe, as recorder, to what the people doth :
so the people should deal crowns and king-
doms at their pleasure, and God behoove to
ratify and make good their act. When God
doth apply the person to royal power, is this
a different action from the people's applying
the person to royal dignity ? It is not ima-
ginable. But the people, by creating a king,
applyeth the person to royal dignity ; and
God, by the people's act of constituting the
man king, doth by the mediation of this act
convey royal authority to the man, as the
church by sending a man and ordaining him
to be a pastor, doth not by that, as God's
instruments, infuse supernatural powers of
preaching ; these supernatural powers may
be, and often are in him before he be in or-
ders. And sometimes God infuseth a super-
natural power of government in a man when
he is not yet a king, as the Lord turned
Saul into another man, (1 Sam. x. 5, 6,) nei-
ther at that point of time when Samuel a-
nointed him, but afterwards: "After that
thou shalt come to the hill of God, the Spi-
rit of the Lord shall come upon thee, and
thou shalt prophesy with them, and shalt be
turned into another man ;" nor yet at that
time when he is formally made king by the
people ; for Saul was not king formally be-
cause of Samuel's anointing, nor yet was he
king because another spirit was infused into
him, (v. 5, 6) for he was yet a private man
till the states of Israel chose him king at
Mizpeh. And the word of God used words
of action to express the people's power:
Judg. ix. 6, And all the men of Sechem
gathered together, and all the men of Millo,
T^Sft'T regnare feccrunt, they caused him
to be king. The same is said 1 Sam. x. 15,
They caused Saul to reign ; 2 Kings x. 15,
t^tf^1?^ $h We shall not king any
man ; 1 Cliron. xii. 38, They came to He-
bron TilT nttT^-H1? to king David
over all Israel ; Deut. xvii. three times the
making of a king is given to the people.
When thou shalt say, -jSd »Sy HD'J^K
I shall set a king over me. If it were not
in their power to make a king no law could
be imposed on them not to make a stranger
their king ; 1 Kings xii. 20, All the con-
fregation kinged Jeroboam, or made him
ing over all Israel ; 2 Kings xi. 12, They
kinged Joash, or made Joash to reign. 6,
The people are to say, You are God's, and
your power is below, saith the Prelate :
What then ? therefore their power is not
from God also ? It followeth not subordi-
nate!, non pugnant. The Scripture saith
both, the Lord exalted David to be king,
and, all power is from God ; and so the
power of a lord mayor of a city : the people
made David king, and the people maketh
such a man lord mayor. It is the Anabap-
tists' argument, — God writeth his law in our
heart, and teacheth his own children ; there-
fore books and the ministry of men are need-
less. So all sciences and lawful arts are from
God ; therefore sciences applied to men are
not from men's free will, industry and studies.
The prelate extolleth the king when he will
have his royalty from God, the way that
John Stiles is the husband of such a woman.
P. Prelate. — Kings are of God, they are
God's, children of the Most High, his ser-
vants, public ministers, — their sword and
judgment are God's. This he hath said of
their royalty in abstracto and in concreto ;
their power, person, charge, are all of divine
extract, and so their authority and person
are both sacred and inviolable.1
Ans.— So are all the congregation of the
judges; Psal. lxxxii. 1, 6, All of them are
God's ; for he speaketh not there of a con-
gregation of kings. So are apostles, their
office and persons of God ; and so the pre-
lates (as they think), the successors of the
apostles, are God's servants ; their ministry,
word, rod of discipline, not theirs, but of
God. The judgment of judges, inferior to
the king, is the Lord's judgment, not men's.
Deut. i. 17 ; 2 Cliron. xix. 6, Hence by the
Prelate's logic, the persons of prelates, ma-
yors, bailiffs, constables, pastors, are sacred
and inviolable above all laws, as are kings.
Is this an extolling of kings ? But where
are kings' persons, as men, said to be of God,
as the royalty in abstracto is ? The Pre-
late seeth beside his book, (Psal. lxxxii. 7,)
" But ye shall die like men."
P. Prelate. — We begin with the law, in
which, as God by himself prescribed the es-
sentials, substantiate, and ceremonies of his
piety and worship, gave order for piety and
i Sacro. Sa. Rpi. Ma. c. 24.
THE LAW AND THE PRINCE.
13
justice ; Deut. xvii. 14, 15, the king is here
originally and immediately from God, and
independent from all others. " Set over
them" — them is collective, that is, all and
every one. Scripture knoweth not this
state principle, — Rex est singulis major,
univcrsis minor. The person is expressed
in concreto, " Whom the Lord thy God
shall choose." This peremptory precept
dischargeth the people, all and every one,
diffusively, representatively, or in any ima-
ginable capacity to attempt the appointing
of a king, but to leave it entirely and totally
to God Almighty.
Ans. — Begin with the law, but end not
with traditions. If God by himself pre-
scribed the essentials of piety and worship,
the other part of your distinction is, that
God, not by himself, but by his prelates,
appointed the whole Romish rites, as acci-
dentals of piety. This is the Jesuits' doc-
trine. This place is so far from proving the
king to be independent, and that it totally
is God's to appoint a king, that it expressly
giveth the people power to appoint a king ;
for the setting of a king over themselves,
this one and not that one, makes the people
to appoint the king, and the king to be less
and dependent on the people, seeing God
intendeth the king for the people's good,
and not the people for the king's good.
This text shanieth the Prelate, who also
confessed, (p. 22,) that remotely and im-
properly, succession, election, and conquest
maketh the king, and so it is lawful for men
remotely and improperly to invade God's
chair.
P. Prelate— Jesuits and puritans say, it
was a privilege of the Jews that God chose
their king. So Suarez, Soto, Navarra.
Ans. — The Jesuits are the Prelate's bre-
thren, they are under one banner, — we are
in contrary camps to Jesuits. The Prelate
said himself, (p. 19,) Moses, Saul, and Da-
vid, were by extraordinary revelation from
God. Sure I am kings are not so now.
The Jews had this privilege that no nation
had. God named some kings to them, as
Saul, David, — he doth not so now. God did
tie royalty to David's house by a covenant
till Christ should come, — he doth not so
now ; yet we stand to Deut. xvii.
P. Prelate. — Prov. 8. 15, " By me kings
reign." If the people had right to consti-
tute a king, it had not been king Solomon,
but king Adonijah. Solomon saith not of
himself, but indefinitely, " By me," as by
the Author, Efficient, and Constituent,
kings reign. Per is by Christ, not by
the people, not by the high priest, state or
presbytery, — not per me iratum, by me in
my anger, as some sectaries say. Paul's
'iia.Tccyh tov Sim, an ordinance by high autho-
rity not revocable. Sinesius so useth the
word, Aristotle, Lucilius, Appian, Plutarch,
•>^ in me and by me, and also Doctor An-
drews. Kings indefinitely, all kings : none
may distinguish where the law distinguish-
eth not, — they reign in concreto. That
same power that maketh kings must unmake
them.
Ans. — 1. The prelate cannot restrict this
to kings only ; it extendeth to parliaments
also. Solomon addeth, Q,3T"n and con-
suls, QH8P all the sirs, and princes,
QO'IJT and magnificents, and nobles,
and more JHtf '£2^ SD and all the
judges of the earth, they reign, rule, and
decree justice by Christ. Here, then, ma-
yors, sheriffs, provosts, constables, are by the
Prelate extolled as persons sacred, irresis-
tible. Then, (1.) the judges of England rule
not by the king of Britain, as their author,
efficient, constituent, but by Jesus Christ
immediately ; nor doth the commissary rule
by the prelate. (2.) All these, and their
power, and persons, ride independently, and
immediately by Jesus Christ. (3.) All in-
ferior judges are itamya.} rov StoZ, the ordi-
nances of God not revocable. Therefore
the king cannot deprive any judge under
him ; he cannot declare the parliament no
parliament : once a judge, and always and
irrevocably a judge. This Prelate's poor
pleading for kings deserves no wages. La-
vater intelligit superiorcs et inferiores ma-
gistratuS) non est potcstas nisi a deo, Vata-
blus consiliarios. 2. If the people had
absolute right to choose kings by the law of
Israel, they might have chosen another than
either Adonijah or Solomon ; but the Lord
expressly put an express law on them, that
they should make no king but him whom
the Lord should choose, Deut. xvii. 4. Now
the Lord did either by his immediately in-
spired prophet anoint the man, as he anoin-
ted David, Saul, Jehu, &c, or then he re-
stricted, by a revealed promise, the royal
power to a family, and to the eldest by
birth ; and, therefore, the Lord first chose
the man and then the people made him
king. Birth was not their rule, as is clear,
in that they made Solomon their king, not
11
LEX, REX ; OR,
Adonijah, the elder ; and this proveth that
God did both ordain kingly government to
the kingdom of Israel, and chose the man,
either in his person, or tied it to the first-
born of the line. Now we have no Scrip-
ture nor law of God to tie royal dignity to
one man or to one family ; produce a war-
rant for it in the Word, for that must be a
privilege of the Jews for which we have no
word of God. We have no immediately in-
spired Samuels to say, "Make David, or
this man king ;" and no word of God to say,
" Let the first-born of this family rather
than another family sit upon the throne;"
therefore the people must make such a man
king, following the rule of God's word,
(Deut. xvii. 14,) and other rules showing
what sort of men judges must be, as Deut.
i. 16—18; 2 Chron. xix. 6, 7. 3. It is
true, kings in a special manner reign by
Christ ; therefore not by the people's free
election ? The P. Prelate argueth like
himself : by this text a mayor of a city by
the Lord decreeth justice ; therefore he is
not made a mayor of a city by the people
of the city. It follovveth not. None of us
teach that kings reign by God's anger. We
judge a king a great mercy of God to church
or state ; but the text saith not, By the
Lord kings and judges do not only reign and
decree justice, but also murder protestants,
by raising against them an army of papists.
And the word 1t*Tuyui, powers, doth in no
Greek author signily irrevocable powers; for
Uzziah was a lawful king, and yet (2 Chron.
xxvi.) lawfully put from the throne, and
" cut off from the house of the Lord." And
interpreters of this passage deny that it is to
be understood of tyrants. So the Chaldee
paraphrase turns it well, Potentes virga
justhiai .-1 so Lavater and Diodatus saith,
this place doth prove, " That all kings,
judges and laws, derivari a lege cetcrna,
are derived from the Eternal Law." The
prelate, eating his tongue for anger, striveth
to prove that all power, and so royal power,
is of God ; but what can he make of it ?
We believe it, though he say (p. 30,) secta-
ries prove, by *«» m< " That a man is justi-
fied by faith only ;" so there is no power but
of God only : but feel the smell of a Jesuit.
It is the sectaries' doctrine, that we are jus-
tified by faith only, but the prelates and the
Jesuits go another way, — not by faith only,
but by works also. And all power is from
i Aquinas, 12, q. 93, art. 3.
God only, as the first Author, and from no
man. What then ? Therefore men and
people interpose no human act in making
this man a king and not that man. It fol-
loweth not. Let us with the Prelate join
Paul and Solomon together, and say, " That
sovereignty is from God, of God, by God, as
God's appointment irrevocable." Then shall
it never follow : it is inseparable from the
person unless you make the king a man im-
mortal. As God only can remove the crown,
it is true God only can put an unworthy and
an excommunicated prelate from office and
benefice ; but how ? Doth that prove that
men and the church may not also in their
place remove an unworthy churchman, when
the church, following God's word, delivereth
to Satan? Christ only, as head of the
church, excommunicateth scandalous men ;
therefore the church cannot do it. And yet
the argument is as good the one way as the
other ; for all the churches on earth cannot
make a minister properly,— they but design
him to the ministry whom God hath gifted
and called. But shall we conclude that no
church on earth, but God only, by an im-
mediate action from heaven, can deprive a
minister? How, then, dare prelates excom-
municate, unmake, and imprison so many
ministers in the three kingdoms? But the
truth is, take this one argument from the
Prelate, and all that is in his book falleth to
the ground, — to wit, Sovereignty is from
God only. A king is a creature of God's
making only ; and what then ? Therefore
sovereignty cannot be taken from him : so
God only made Aaron's house priests. So-
lomon had no law to depose Abiathar from
the priesthood. Possibly the Prelate will
grant all. The passage, Rom. xiii., which he
saith hath tortured us, I refer to a fitter place
— it will be found to torture court parasites.
I go on with the Prelate, (c. 3,) " Sacred
sovereignty is to be preserved, and kings
are to be prayed for, that we may lead a
godly life," 1 Tim. iii. What then ? All
in authority are to be prayed for, — even
parliaments ; by that text pastors are to be
prayed for, and without them sound religion
cannot well subsist. Is this questioned, that
kings should be prayed for ; or are we want-
ing in this duty ? but it followeth not that
all dignities to be prayed for are imme-
diately from God, not from men.
P. Prelate. — Prov. viii., Solomon spcak-
cth first of the establishment of government
before he speaks of the works of creation ;
THE LAW AND THE V1UXCE.
15
therefore better not bo at all as be without
government. And God fixed government
in the person of Adam before Eve, or any
one else, came into the world ; and how
shall government be, and we enjoy the fruits
of it, except we preserve the king's sacred
authority inviolable ?
Ans. — 1. Moses (Gen. i.) speaketh of
creation before he speaketh of kings, and
he speaketh (Gen. iii.) of Adam's sins be-
fore he speaks of redemption through the
blessed Seed ; therefore better never be re-
deemed at all as to be without sin. 2. If
God made Adam a governor before he made
Eve, and any of mankind, he was made a
father and a husband before he had either
son or wife. Is this the Prelate's logic ?
He may prove that two eggs on his father's
table are three this way. 3. There is no
government where sovereignty is not kept
inviolable. It is true, where there is a
king, sovereignty must be inviolable. What
then ? Arbitrary government is not sove-
reignty. 4. He intimateth aristocracy, and
democracy, and the power of parliaments,
which maketh kings, to be nothing but anar-
chy, for he speaketh here of no government
but monarchy.
P. Prelate. — There is need of grace to
obey the king, Psal. xviii. 43 ; cxliv. 2. It
is God who subdueth the people under Da-
vid. Rebellion against the king is rebellion
against God. 1 Pet. ii. 17 ; Prov. xxiv. 12.
Therefore kings have a near alliance with
God.
Ans. — 1. There is much grace in papists
and prelates then, who use to write and
preach against grace. 2. Lorinus your bro-
ther Jesuit will, with good warrant of the
texts infer, that the king may make a con-
quest of his own kingdoms of Scotland and
England by the sword, as David subdued the
heathen. 3. Arbitrary governing hath no
alliance with God ; a rebel to God and his
country, and an apostate, hath no reason to
term lawful defence against cut -throat Irish
rebellion. 4. There is need of much grace
to obey pastors, inferior judges, masters, (Col.
iii. 22, 23,) therefore their power is from
God immediately, and no more from men
than the king is created king by the people,
according to the way of royalists.
P. Prelate— God saith of Pharaoh, (Ex.
ix. 17,) I have raised thee up. Elisha, di-
rected by God, constituted the king of Sy-
ria, 2 Kings viii. 13. Pharaoh, Abime-
lech, Hiram, Hazael, Hadad, are no less
honoured with the appellation of kings, than
David, Saul, &c., Jer. xxix. 9. Nebuchad-
nezzar is honoured to be called, by way of
excellency, God's servant, which God giveth
to David, a king according to his own heart.
And Isa. xlv. I, " Thus saith the Lord to
his anointed, Cyrus ;" and God nameth him
near a hundred years before lie was born;
Isa. xliv. 28, "He is my shepherd;" Dan.
v. 21, God giveth kingdoms to whom he
will; Dan. v. 21, empires, kingdoms, roy-
alties, are not disposed of by the composed
contracts of men, but by the immediate
hand and work of God ; Hos. xiii. 11, " I
gave thee a king in my anger, I took him
away in my wrath ;" Job, He places kings
in the throne, &c.
Ans. — Here is a whole chapter of seven
pages for one raw argument ten times before
repeated. 1. Exod. ix. 7, I have raised up
Pharaoh ; Paul expoundeth it, (Rom. ix.)
to prove that king Pharaoh was a vessel of
wrath fitted for destruction by God's abso-
lute will ; and the Prelate following Ar-
minius, with treasonable charity, applieth
this to our king. Can this man pray for
the king ? 2. Elisha anointed, but did not
constitute, Hazael king ; he foretold he
should be king ; and if he be a king of
God's making, who slew his sick prince and
invaded the throne by innocent blocd, judge
you. I would not take kings of the Pre-
late's making. 3. If God give to Nebu-
chadnezzar the same title of the servant of
God, which is given to Daniel, (Psal. xviii.
1, and cxvi. 16 ;) and to Moses, (Jos. i. 2,)
all kings, because kings, are men according
to God's heart. Why is not royalty then
founded on grace ? Nebuchadnezzar was
not otherwise his servant, than he was the
hammer of the earth, and a tyrannous con-
queror of the Lord's people. All the hea-
then kings are called kings. But how came
they to their thrones for the most part ?
As David and Hezekiah ? But God anoint-
ed them not by his prophets ; they came to
their kingdoms by the people's election, or
by blood and rapine ; the latter way is no
ground to you to deny Athaliah to be a law-
ful princess — she and Abimelech were law-
ful princes, and their sovereignty, as imme-
diately and independently from God, as the
sovereignty of many heathen kinos. See
then how justly Athaliah was killed as a
bloody usurper of the throne ; and this
would licence your brethren, the Jesuits, to
stab heathen kings, whom you will have as
16
LEX, REX
well kings, as the Lord's anointed, though
Nebuchadnezzar and many of them made
their way to the throne, against all law of
God and man, through a bloody patent, 4.
Cyrus is God's anointed and his shepherd
too, therefore his arbitrary government is
a sovereignty immediately depending on
God, and above all law ; it is a wicked
consequence. 5. God named Cyrus near
a hundred years ere he was born ; God
named and designed Judas veiy individu-
ally, and named the ass that Christ should
ride on to Jerusalem, (Zach. ix. 9,) some
more hundred years than one. What, will
the Prelate make them independent kings
for that ? 6. God giveth kingdoms to whom
he will. What then ? This will prove king-
doms to be as independent and immediately
from God as kings are ; for as God giveth
kings to kingdoms, so he giveth kingdoms
to kings, and no doubt he giveth kingdoms
to whom he will. So he giveth prophets,
apostles, pastors, to whom he will ; and he
giveth tyrannous conquests to whom he will :
and it is Nebuchadnezzar to whom Daniel
speaketh that from the Lord, and he had
no just title to many kingdoms, especially
to the kingdom of Judah, which yet God,
the King of kings, gave to him because it
was his good pleasure ; and if God had not
commanded them by the mouth of his pro-
phet Jeremiah, might they not have risen,
and, with the sword, have vindicated them-
selves and their own liberty, no less than
they lawfully, by the sword, vindicated
themselves from under Moab, (Judges hi.,)
and from under Jabin, king of Canaan,
who, twenty years, mightily oppressed the
children of Israel, Judges iv. Now this P.
Prelate, by all these instances, making hea-
then kings to be kings by as good a title as
David and Hezekiah, condemneth the peo-
ple of God as rebels, if, being subdued and
conquered by the Turk and Spanish king,
they should, by the sword, recover their
own liberty; and that Israel, and the sa-
viours which God raised to them, had not
warrant from the law of nature to vindicate
themselves to liberty, which was taken from
them violently and unjustly by the sword.
From all this it shall well follow that the
tyranny of bloody conquerors is immediately
and only dependent from God, no less than
lawful sovereignty ; for Nebuchadnezzar's
sovereignty over the people of God, and
many other kingdoms also, was revenged of
God as tyranny, Jer, 1. 6, 7 ; and therefore
the vengeance of the Lord, and the ven-
geance of his temple, came upon him and
his land, Jer. 1. 16, &c. It is true the peo-
ple of God were commanded of God to sub-
mit to the king of Babylon, to serve him,
and to pray for him, and to do the contrary
was rebellion ; but this was not because the
king of Babylon was their king, and because
the king of Babylon had a command of God
so to bring under his yoke the people of God.
So Christ had a commandment to suffer the
death of the cross, (John x. 18,) but had
Herod and Pilate any warrant to crucify
him ? None at all. 7. He saith, Royal-
ties, even of heathen kings, are not disposed
of by the composed contracts of men, but by
the immediate hand and work of God. But
the contracts of men to give a kingdom to a
person, which a heathen community may
lawfully do, and so by contract dispose of a
kingdom, is not opposite to the immediate
hand of God, appointing royalty and mo-
narchy at his own blessed liberty. Lastly
he saith, God took away Saul in his wrath ;
but I pray you, did God only do it ? Then
had Saul, because a king, a patent royal
from God to kill himself, for so God took
him away ; and we are rebels by this, if we
suffer not the king to kill himself. Well
pleaded.
QUESTION VI.
WHETHER THE KING BE SO FROM GOD ONLY,
BOTH IN REGARD OF HIS SOVEREIGNTY AND
OF THE DESIGNATION OF HIS PERSON TO
THE CROWN, AS THAT HE IS NO WAY FROM
THE PEOPLE, BUT BY MERE APPROBATION.
Dr Feme, a man much for monarchy,
saith, Though monarchy hath its excel-
lency, being first set up of God, in Moses,
yet neither monarchy, aristocracy, nor any
other form, is jure divino, but " we say
(saith he)1 the power itself, or that suffi-
ciency of authority to govern that is in a
monarchy or aristocracy, abstractly consi-
dered from the qualification of other forms,
is a flux and constitution subordinate to that
providence ; an ordinance of that dixi or si-
lent word by which the world was made,
and shall be governed under God." This
is a great debasing of the Lord's anointed,
i Dr Feme, 3, a. 13.
THE LAW AND THE PRINCE.
17
for so sovereignty hath no warrant in God's
word, formally as it is such a government,
hut is in the world by providence, as sin is,
and as the falling of a sparrow to the ground ;
whereas God's word hath not only command-
ed that government should be, but that fa-
thers and mothers should be ; and not only
that politic rulers should be, but also kings
by name, and other judges aristocratical
should be, Rom. xiii, 3 ; Deut. xvii. 14 ;
1 Pet. ii, xvii. ; Prov. xxiv. 21 ; Prov. xv.
16. If the power of monarchy and aristo-
cracy, abstracted from the forms, be from
God, then it is no more lawful to resist aris-
tocratical government and our lords of par-
liament or judges, than it is lawful to resist
kings.
But hear the Prelate's reasons to prove
that the king is from the people by appro-
bation only. " The people (Deut. xvii.) are
said to set a king over them only as (1 Cor.
vi.) the saints are said to judge the world,
that is, by consenting to Christ's judgment :
so the people do not make a king by trans-
ferring on him sovereignty, but by accept-
ing, acknowledging, and reverencing him as
king, whom God hath both constituted and
designed king."
Ans. — 1. This is said, but not a word
proved, for the Queen of Sheba and Hiram
acknowledged, reverenced and obeyed Solo-
mon as king, and yet they made him not
king, as the princes of Israel did. 2. Reve-
rence and obedience of the people is relative
to the king's laws, but the people's making
of a king is not relative to the laws of a
king ; for then he should be a king giving
laws and commanding the people as king,
before the people make him king, 3. If
the people's approving and consenting that
an elected king be their king, presupposeth
that he is a king, designed and constituted
by God, before the people approve him as
king, let the P. Prelate give us an act of
God now designing a man king, for there
is no immediate voice from heaven saying
to a people, This is your king, before the
people elect one of six to be their king.
And this infallibly proveth that God de-
signeth one of six to be a king, to a people
who had no king before, by no other act but
by determining the hearts of the states to
elect and design this man king, and pass
any of the other five. 4. When God (Deut.
xvii.) forbiddeth them to choose a stranger,
he presupposeth they may choose a stran-
ger ; for God's law now given to man in the
state of sin, presupposeth he hath corruption
of nature to do contrary to God's law. Now
if God did hold forth that their setting a
king over them was but the people's approv-
ing the man whom God shall both consti-
tute and design to be king, then he should
presuppose that God was to design a stran-
ger to be the lawful king of Israel, and the
people should be interdicted to approve and
consent that the man should be king whom
God should choose; for it was impossible that
the people should make a stranger king (God
is the only immediate king-creator), the peo-
ple should only approve and consent that a
stranger should be king ; yet, upon supposi-
tion that God first constituted and designed
the stranger king, it was not in the people's
power that the king should be a brother ra-
ther than a stranger, for if the people have
no power to make a king, but do only ap-
prove him or consent to him, when he is
both made and designed of God to bo king,
it is not in their power that he be either
brother or stranger, and so God command-
eth what is simply impossible. Consider the
sense of the command by the Prelate's vain
logic: I Jehovah, as I only create the world
of nothing, so I only constitute and design a
man, whether a Jew or Nebuchadnezzar, a
stranger, to be your king ; yet I inhibit you,
under the pain of my curse, that you set
any king over yourselves, but only a brother.
What is this, but I inhibit you to be crea-
tors by omnipotent power ? 5. To these
add the reasons I produced before, that the
people, by no shadow of reason, can be com-
manded to make this man king, not that
man, if they only consent to the man made
king, but have no action in the making of
the king,
P. Prelate. — All the acts, real and ima-
ginable, which are necessary for the making
of kings, are ascribed to God. Take the
first king as a ruling case, 1 Sam. xii. 13,
" Behold the king whom ye have chosen,
and whom ye have desired ; and, behold,
the L,ord hath set a king over you !" This
election of the people can be no other but
their admittance or acceptance of the king
whom God hath chosen and constituted, as
the words, " whom ye have chosen," imply.
1 Sam. ix. 17 ; 1 Sam. x. 1, You have
Saul's election and constitution, where Sa-
muel, as priest and prophet, anointeth him,
doing reverence and obeisance to him, and
ascribing to God, that he did appoint him
supreme and sovereign over his inheritance.
18
LEX, REX J OR,
And the same expression is, (1 Sam. xii.
13,) " The Lord hath set a king over you ;"
which is, Psal. ii. 6, " I have set my king
upon my holy hill of Zion." Neither man
nor angel hath any share in any act of con-
stituting Christ king. Deut. xvii. the Lord
vindicateth, as proper and peculiar to him-
self, the designation of the person. It was
not arbitrary to the people to admit or reject
Saul so designed. It pleased God to con-
summate the work by the acceptation, con-
sent and approbation of the people, ut sua-
viore modo, that by a smoother way he might
encourage Saul to undergo the hard charge,
and make his people the more heartily, with-
out grumbling and scrapie, reverence and
obey him. The people's admittance possi-
bly added something to the solemnity and
to the pomp, but nothing to the essential
and real constitution or necessity ; it only
puts the subjects in mala fide, if they
should contravene, as the intimation of a
law, the coronation of an hereditary king,
the enthronement of a bishop. And 1 Kings,
iii. 7, " Thou hast made thy servant king;"
1 Sam. xvi. 1, " I have provided me a king;"
Psal. xviii. 50, He is God's king ; Ps. lxxxix.
19, " I have exalted one chosen out of the
people ;" (ver. 20,) He anointeth them ;
(ver. 27,) adopteth them : " I will make him
my first-born." The first-born is above every
brother severally, and above all, though a
thousand jointly.
Ana. — 1. By this reason, inferior judges
are no less immediate deputies of God, and
so irresistible, than the king, because God
took off the spirit that was on Moses, and
immediately poured it on the seventy elders,
who were judges inferior to Moses, Num. ii.
14 — 16. 2. This P. Prelate cannot make a
syllogism. If all the acts necessary to make
a kin<r be ascribed to God, none to the peo-
ple, then God both constituteth and design-
eth the king — but the former the Scrip-
ture saith ; therefore, if all the acts be as-
cribed to God, as to the prime king-maker
and disposer of kings and kingdoms, and
none to the people, in that notion, then God
both constituteth and designeth a king.
Both major and minor are false. The ma-
jor is as false as the very P. Prelate him-
self. All the acts necessary for war-mak-
ing are, in an eminent manner, ascribed to
God, as (1.) The Lord fighteth for his own
people. (2.) The Lord scattered the ene-
mies. (3.) The Lord slew Og, king of Ba-
shan. (4.) The battle is the Lord's. (5.)
The victory the Lord's; therefore Israel
never fought a battle. So Deut. xxxii.,
The Lord alone led his people — the Lord
led them in the wilderness — their bow and
their sword gave them not the land. God
wrought all their works for them, (Isa. xxvi.
12 ;) therefore Moses led them not ; there-
fore the people went not on then- own legs
through the wilderness ; therefore the people
never shot an arrow, never drew a sword. It
followeth not. God did all these as the first,
eminent, principal, and efficacious pre-deter-
minator of the creature (though this Armi-
nian and popish prelate mind not so to hon-
our God). The assumption is also false, for
the people made Saul and David kings ; and
it were ridiculous that God should command
them to make a brother, not a stranger, king,
if it was not in their power whether lie should
be a Jew, a Scythian, an Ethiopian, who was
their king, if God did only, without them,
both choose, constitute, design the person,
and perform all acts essential to make a
king ; and the people had no more in them
but only to admit and consent, and that for
the solemnity and pomp, not for the essen-
tial constitution of the king. 1 Sam. ix.
17; 1 Sam. x. 1, we have not Saul elect-
ed and constituted king. Samuel did obeis-
ance to him and kissed him, for the honour
royal which God was to put upon him ; for,
before this prophetical unction, (1 Sam. ix.
22,) he made him sit in the chief place, and
honoured him as king, when as yet Samuel
was materially king and the Lord's vice-
gerent in Israel. If, then, the Prelate con-
clude any thing from Samuel's doing reve-
rence and obeisance to him as king, it shall
follow that Saul was formally king, before
Samuel (1 Sam. x. 1) anointed him and
kissed him, and that must be before he was
formally king, otherwise he was in God's
appointment king, before ever he saw Sa-
muel's face ; and it is true he ascribeth hon-
our to him, as to one appointed by God to
be supreme sovereign, for that which he
should be, not for that which he was, as
(1 Sam. ix. 22) he set him in the chief
place ; and, therefore, it is false that we
have Saul's election and constitution to be
king, (1 Sam. x.,) for after that time the
people are rebuked for seeking a king, and
that with a purpose to dissuade them from
it as a sinful desire : and he is chosen by
lots after that and made king, and after Sa-
muel's anointing of him he was a private
man, and did hide himself amongst the stuff,
THE LAW AND THE PRINCE.
19
ver. 22. 3. The Prelate, from ignorance or
wilfully, I know not, saith, The expression
and phrase is the same, 1 Sam. xii. 13, and
Psal. ii. 6, which is false ; for 1 Sam. xii. 13,
it is -fin on»Sy mir ?na mm
Behold the Lord hath given you a king,
such is the expression ; Hos. xiii. 11,1 gave
them a king in my wrath, but that is not the
expression in Psalm ii. 6, hut this, O/D
TDDJ *JK1 " But I have established
him my king;" and though it were the
same expression, it followeth not that the
people have no hand any other way in ap-
pointing Christ their head, (though that
phrase also be in the Word, Hos. i. 11,)
than by consenting and believing in him as
king ; but this proveth not that the people,
in appointing a king, hath no hand but na-
ked approbation, for the same phrase doth
not express the same action ; nay, the judges
are to kiss Christ, (Psal. ii. 12,) the same
way, and by the same action, that Samuel
kissed Saul, (1 Sam. x. 1,) and the idolaters
kissed the calves, (Hos. xiii. 2 ;) for the same
Hebrew word is used in all the three places,
and yet it it certain the first kissing is spiri-
tual, the second a kiss of honour, and the
third an idolatrous kissing. 4. The anoint-
ing of Saul cannot be a leading rule to the
making of all kings to the world's end ; for
the P. Prelate, forgetting himself, said, that
only some few, as Moses, Saul, and David,
&c, by extraordinary manifestation from
heaven, were made kings, (p. 19.) 5. He
saith it was not arbitrary for the people to
admit or reject Saul so designed. What
meaneth he. It was not morally arbitrary,
because they were under a law (Deut. xvii.
14, 15) to make him king whom the Lord
should choose. That is true. But was it
not arbitrary to them to break a law phy-
sically ? I think he, who is a professed Ar-
minian, will not so side with Manicheans
and fatalists. But the P. Prelate must prove
it was not arbitrary, either morally or phy-
sically, to them not to accept Saul as their
king, because they had no action at all in
the making of a king. God did it all, both
by constituting and designing the king.
Why then did God (Deut. xvii.) give a law
to them to make this man king, not that
man, if it was not in their free will to have
any action or hand in the making of a king
at all ? But that some sons of Belial would
not accept him as their king, is expressly
said, (1 Sam. x. 27 ;) and how did Israel
conspire with Absalom to unking and de-
throne David, whom the Lord had made
king ? If the Prelate mean it was not arbi-
trary to them physically to reject Saul, he
speaketh wonders ; the sons of Belial did re-
ject him, therefore they had physical power
to do it. If he mean it was not arbitrary,
that is, it was not lawful to them to reject
him, that is true ; but doth it follow they
had no hand nor action in making Saul
king, because it was not lawful for them to
make a king in a sinful way, and to refuse
him whom God choose to be king ? Then
see what I infer. (1.) That they had no
hand in obeying him as king, because they
sinned in obeying unlawful commandments
against God's law, and so they had no hand
in approving and consenting he should be
king ; the contrary whereof the P. Prelate
saith. (2.) So might the P. Prelate prove
men are passive, and have no action in vio-
lating all the commandments of God, be-
cause it is not lawful to them to violate any
one commandment. 6. The Lord (Deut.
xvii.) vindicates this, as proper and peculiar
to himself, to choose the person, and to
choose Saul. What then ? Therefore now
the people, choosing a king, have no power
to choose or name a man, because God
anointed Saul and David by immediate
manifestation of his will to Samuel ; this
consequence is nothing, and also it follow-
eth in nowise, that therefore the people
made not Saul king. 7- That the people's
approbation of a king is not necessary, is the
saying of Beilarmine and the papists, and
that the people choose their ministers in the
apostolic church, not by a necessity of a di-
vine commandment, but to conciliate love
betwixt pastor and people. Papists hold
that if the Pope make a popish king the
head and king of Britain, against the peo-
ple's will, yet is he their king. 8. David
was then king all the time Saul persecuted
him. He sinned, truly, in not discharging
the duty of a king, only because he wanted
a ceremony, the people's approbation, which
the Prelate saith is required to the solemnity
and pomp, not to the necessity, and truth,
and essence, of a formal king. So the king's
coronation oath, and the people's oath, must
be ceremonies ; and because the Prelate is
perjured himself, therefore perjury is but a
ceremony also. 9. The enthronement of
bishops is like the kinging of the Pope. The
apostles must spare thrones when they come
to heaven, (Luke xxii. 29, 30;) the popish
20
prelates, with their head the Pope, must be
enthroned. 10. The hereditary king he
maketh a king before his coronation} and
his acts are as valid before as after his coro-
nation. It might cost him his head to say-
that the Prince of Wales is now king of
Britain, and his acts acts of kingly royalty}
no less than our sovereign is king of Britain,
if laws and parliaments had their own vigour
from royal authority. 11. I allow that kings
be as high as God hath placed them, but
that God said of all kings, " I will make him
my first-born," &c, Psal. lxxxix. 26, 27, —
which is true of Solomon as the type, 2 Sam.
vii. ; 1 Chron. xvii. 22; 2 Sani; vii. 12 ; and
fulfilled of Christ, and by the Holy Ghost
spoken of him, (Heb. i. 5, 6,) — is blasphem-
ous ; for God said not to Nero, Julian, Dio-
clesian, Belshazzar, Evil-merodach, who were
lawful kings, " I will make him my first-
bom ;" and that any of these blasphemous
idolatrous princes should cry to God, " He
is my father, my God," &c, is divinity well-
beseeming an excommunicated prelate. Of
the king's dignity above the kingdom I
speak not now ; the Prelate pulled it in by
the hair, but hereafter we shall hear of it.
P. Prelate (p. 43, 44). — God only anoin-
ted David, (1 Sam. xvi. 4,) the men of Beth-
lehem, yea, Samuel knew it not before. God
saith, " With mine holy oil have I anointed
him," Psal. lxxxix. 91. 1. He is the Lord's
anointed. 2. The oil is God's, not from the
apothecary's shop, nor the priest's vial — this
oil descended from the Holy Ghost, who is
no less the true olive than Christ is the true
vine ; yet not the oil of saving grace, as some
fantastics say, but holy, (l) From the au-
thor, God. (2.) From influence in the per-
son, it maketh the person of the king sacred.
(3.) From influence on his charge, his func-
tion and power is sacred.
Ans. — 1. The Prelate said before, David's
anointing was extraordinary ; here he draw-
eth this anointing to all kings. 2. Let Da-
vid be formally both constituted and design-
ed king divers years before the states made
him king at Hebron, and then (1.) Saul was
not king, — the Prelate will term that trea-
son. (2.) This was a dry oil. David's per-
son was not made sacred, nor his authority
sacred by it, for he remained a private man,
and called Saul his king, his master, and
himself a subject. (3.) This oil was, no
doubt, God's oil, and the Prelate will have
it the Holy Ghost's, yet he denieth that I
saving grace, yea, (p. 2. c. i.) he denieth |
that any supernatural gift should be the
foundation of royal dignity, and that it is
a pernicious tenet. So to me he would
have the oil from heaven, and yet not from
heaven. (4.) This holy oil, wherewith Da-
vid was anointed, (Psal. lxxxix. 20,) is the
oil of saving grace j1 his own dear brethren,
the papists, say so, and especially Lyranus,2
Glossa ordinaria, Hugo Cardinalis,3 his be-
loved Bellarmine, and Lorinus, Calvin, Mus-
culus, Marloratus. If these be fanatics, (as
I think they are to the Prelate,) yet the
text is evident that this oil of God was the
oil of saving grace, bestowed on David as on
a special type of Christ, who received the
Spirit above measure, and was the anointed
of God, (Psal. xlv. 7,) whereby all his "gar-
ments smell of myrrh, aloes and cassia," (ver.
8,) and " his name Messiah is as ointment
poured out, (Song, i.) This anointed shall be
head of his enemies. " His dominion shall
be from the sea to the rivers," ver. 25. He
is in the covenant of grace, ver. 26. He is
" higher than the kings of the earth." The
grace of perseverance is promised to his
seed, ver. 28—30. His kingdom is eternal
" as the days of heaven," ver. 35} 36. If
the Prelate will look under himself to Dio-
datus and Ainsworth,4 this holy oil was
poured on David by Samuel, and on Christ
was poured the Holy Ghost, and that by
warrant of Scripture, (1 Sam. xvi. 1 ; xiii.
14 ; Luke iv. 18, 21 ; John iii. 34,) and
Junius5 and Mollerus6 saith with them;
Now the Prelate taketh the court way, to
pour this oil of grace on many dry princes,
who, without all doubt, are kings essentially
no less than David. He must see better
than the man who, finding Pontius Pilate in
the Creed, said} he behooved to be a good
man ; so, because he hath found Nero the
tyrant, Julian the apostate} Nebuchadnez-
zar, Evil-merodach, Hazael, Hagag, all the
kings of Spain, and, I doubt not, the Great
Turk, in Psal. lxxxix. 19, 20, so all these
kings are anointed with the oil of grace, and
all these must make their enemies' necks
their footstool. All these be higher than
the kings of the earth, and are hard and
fast in the covenant of grace, &c.
1 Aug. in locum, unxi manum fortem, servum
obedienteiu ideo in eo posui adjntorium.
2 Lyranus Gratia est habitualis, quia stat pugil
contra diabolum.
3 Hugo Cardinalis, Oleo latitiae quo prae consor-
tibus unctus fuit Christus, Ps. xlv.
4 Ainsworth, Annot.
5 Junius Annot. in loc. 6 .Mollerus Com. ib.
THE LAW AND THE PRINCE.
2]
P. Prelate. — All the royal ensigns and
acts of kings are ascribed to God. The
crown is of God, Isa. lxii. 3 ; Psal. xxi. 3.
In the emperors' coin was a hand putting a
crown on their head. The heathen said
they were Sum/pils, as holding their crowns
from God. Psal. xviii. 39, Thou hast girt
me with strength (the sword is the emblem
of strength) unto battle. See Judg. vii. 17,
Their sceptre God's sceptre. Exod. iv. 20 ;
xvii. 9, We read of two rods, Moses' and
Aaron's ; Aaron's rod budded : God made
both the rods. Their judgment is the Lord's,
2 Chron. xix> 6 ; their throne is God's, 1
Chron. xix. 21. The fathers called them,
sacra vestigia, sacra majestas, — their com-
mandment, divalis jussio. The law saith,
all their goods are res sacrce. Therefore
our new statists disgrace kings, if they blas-
pheme not God, in making them the deri-
vatives of the people, — the basest extract of
the basest of irrational creatures, the multi-
tude, the commonalty.
Ans. — This is all one argument from the
Prelate's beginning of his book to the end :
In a most special and eminent act of God's
providence kings are from God ; but, there-
fore, they are not from men and men's con-
sent. It followeth not. From a most spe-
cial and eminent act of God's providence
Christ came into the world, and took on
him our nature, therefore he came not of
David's loins. It is a vain consequence.
There could not be a more eminent act
than this, (Psal. xl.) " A body thou hast
given me ;" therefore he came not of Da-
vid's house, and from Adam by natural
generation, and was not a man like us in all
things except sin. It is tyrannical and do-
mineering logic. Many things are ascribed
to God only, by reason of a special and ad-
mirable act of providence, — as the saving of
the world by Christ, the giving of Canaan
to Israel, the bringing his people out from
Egypt and from Chaldee, the sending of the
gospel to both Jew and Gentile, &c. ; but,
shall we say that God did none of these
things by the ministry of men, and weak
and frail men ? 1 . How proveth the Pre-
late that all royal ensigns are ascribed to
God, because (Isa. lxii.) the church univer-
sal shall be as a crown of glory and a royal
diadem in the hand of the Lord ; therefore,
bceculus in angulo, the church shall be as a
seal on the heart of Christ. What then ?
Jerome, Procopius, Cyrillus, with good rea-
son, render the meaning thus : Thou, 0
Zion and church, shalt be to me a royal
priesthood, and a holy people. For that he
speaketh of his own kingdom and church is
most evident, (ver. 1, 2,) " For Zion's sake
I will not hold my peace," &c. 2. God
put a crown of pure gold on David's head,
(Psal. xxi. 3,) therefore Julian, Nero, and
no elective kings, are made and designed to
be kings by the people. He shall never
prove this conssquence. The Chaldee pa-
raphrase applieth it to the reign of King
Messiah ; Diodatus speaketh of the kingdom
of Christ ; Ainsworth maketh this crown
a sign of Christ's victory ; Athanasius, Eu-
sebius, Origen, Augustine, Dydimus, ex-
pound it of Christ and his kingdom. The
Prelate extendeth it to all kings, as the
blasphemous rabbins^ especially Kabbin Salo-
mon, deny that he speaketh of Christ here.
But what more reason is there to expound
this of the crowns of all kings given by God,
(which I deny not,) to Nero, Julian, &c,
than to expound the foregoing and following
verses as applied to all kings ? Did Julian
rejoice in God's salvation? did God grant
Nero his heart's desire ? did God grant (as
it is, ver. 4,) life eternal to heathen kings as
kings ? which words all interpreters expound
of the eternity of David's throne, till Christ
come, and of victory and life eternal pur-
chased by Christ, as Ainsworth, with good
reason, expounds it. And what though God
gave David a crown, was it not by second
causes, and by bowing all Israel's heart to
come in sincerity to Hebron to make Da-
vid king ? 1 Kings xii. 38. God gave corn
and wine to Israel, (Hos. ii.) and shall the
prelate and the anabaptist infer, therefore,
he giveth it not by ploughing, sowing, and
the art of the husbandman ? 3. The hea-
then acknowledgeth a divinity in kings, but
he is blind who readeth them and seeth not
in their writings that they teach that the
people maketh kings. 4. God girt David
with strength, while he was a private man,
and persecuted by Saul> and fought with
Goliah, as the title of the same beareth ;
and he made him a valiant man of war, to
break bows of steel ; therefore he giveth the
sword to kings as kings, and they receive no
sword from the people. This is poor logic.
5. The P. Prelate sendeth us (Judg. vii.
17,) to the singular and extraordinary power
of God with Gideon ; and, I say, that same
power behooved to be in Oreb and Zeeb,
(ver. 27,) for they were *"[& princes, and
such as the Prelate, from Prov. vii. 15,
22
LEX, REX ; OR,
saith have no power from the people. 6.
Moses' and Aaron's rods were miraculous.
This will prove that priests are also God's,
and their persons sacred. I see not (except
the Prelate would be at worshipping of re-
lics) what more royal divinity is in Moses'
rod, because he wrought miracles by his rod,
than there is in Elijah's staff, in Peter's
napkin, in Paul's shadow. This is like the
strong symbolical theology of his fathers the
Jesuits, which is not argumentative, except
he say that Moses, as king of Jeshurun,
wrought miracles ; and why should not Ne-
ro's, Caligula's, Pharaoh's, and all kings'
rods then dry up the Red Sea, and work
miracles? 7. We give all the styles to
kings that the fathers gave, and yet we
think not when David commandeth to kill
Uriah, and a king commandeth to murder
his innocent subjects in England and Scot-
land, that that is divalis jussio, the com-
mand of a god ; and that this is a good con-
sequence— -Whatever the king commandeth,
though it were to kill his most loyal sub-
jects, is the commandment of God ; there-
fore the king is not made king by the peo-
ple. 8. Therefore, saith he, these new sta-
tists disgrace the king. If a new statist,
sprung out of a poor pursuivant of Crail —
from the dunghill to the court — could have
made himself an old statist, and more ex-
pert in state affah's than all the nobles and
soundest lawyers in Scotland and England,
this might have more weight. 9. There-
fore the king (saith P. P.) is not " the ex-
tract of the basest of rational creatures."
He meaneth, fex popidi, his own house and
lineage ; but God calleth them his own peo-
ple, " a royal priesthood, a chosen genera-
tion ;" and Psal. lxxviii. 71, will warrant
us to say, the people is much worthier be-
fore God than one man, seeing God chose
David for " Jacob his people, and Israel his
inheritance," that he might feed them.
John P. P.'s father's suffrage in making a
kincr will never be sought. We make not
the multitude, but the three estates, includ-
ing the nobles and gentry, to be as rational
creatures as any apostate prelate in the
three kingdoms.
QUESTION VII.
WHETHER OR NO THE POPISH PRELATE, THE
AFORESAID AUTHOR, DOTH BY FORCE OF
REASON EVINCE THAT NEITHER CONSTITU-
TION NOR DESIGNATION OF THE KING IS
FROM THE PEOPLE.
The P. Prelate aimeth (but it is an
empty aim) to prove that the people are
wholly excluded. I answer only arguments
not pitched on before, as the Prelate saith.
P. Prelate. — 1. To whom can it be more
proper to give the rule over men than to
Him who is the only king truly and properly
of the whole world ? 2. God is the imme-
diate author of all rule and power that is
amongst all his creatures, above or below.
3. Man before the fall received dominion
and empire over all the creatures below im-
mediately, as Gen. i. 28 ; Gen. ix. 2 ; there-
fore we cannot deny that the most noble
government (to wit monarchy) must be im-
mediately from God, without any contract
or compact of men.
Ans. — 1. The first reason concludeth not
what is in question ; for God only giveth
rule and power to one man over another ;
therefore he giveth it immediately. It fol-
loweth not. 2. It shall as well prove that
God doth immediately constitute all judges,
and therefore it shall be unlawful for a city
to appoint a mayor, or a shire a justice of
peace. 3. The second argument is in-
consequent also, because God in creation is
the immediate author of all tilings, and,
therefore, without consent of the creatures,
or any act of the creature, created an angel
a nobler creature than man, and a man than
a woman, and men above beasts; because
those that are not can exercise no act at all.
But it followeth not that all the works of
providence, such as is the government of
kingdoms, are done immediately by God;
for in the works of providence, for the most
part in ordinary, God worketh by means.
It is then as good a consequence as this:
God immediately created man, therefore he
keepeth Ids life immediately also without
food and sleep ; God immediately created
the sun, therefore God immediately, without
the mediation of the sun, giveth light to the
world. The making of a lung is an act of
reason, and God hath given a man reason to
rule himself ; and therefore hath given to a
society an instinct of reason to appoint a
THE LAW AND THE PRINCE.
23
governor over themselves ; but no act of rea-
son goeth before man be created, therefore
it is not in his power whether he be created
a creature of greater power than a beast or
no. 4. God by creation gave power to a
man over the creatures, and so immediately ;
but I hope men cannot say, God by creation
hath made a man king over men. 5. The
excellency of monarchy (if it be more excel-
lent than any other government, of which
hereafter) is no ground why it should be im-
mediately from God as well as man's domi-
nion over the creature ; for then the work
of man's redemption, being more excellent
than the raising of Lazarus, should have
been done immediately without the incar-
nation, death and satisfaction of Christ, (for
no act of God without himself is comparable
to the work of redemption, 1 Pet. i. 11, 12 ;
Col. i. 18—22,) and God's less excellent
works, as his creating of beasts and worms,
should have been done mediately, and his
creating of man immediately.
P. Prelate. — They who execute the judg-
ment of God must needs have the power to
judge from God ; but kings are deputies in
the exercise of the judgments of God, there-
fore the proposition is proved. How is it
imaginable that God reconcileth the world
by ministers, and saveth man by them, (1
Cor. v. ; 1 Tim. iv. 16,) except they receive
a power so to do from God ? The assump-
tion is, (Deut. i. 17 ; 1 Chron. xix. 6,) Let
none say Moses and Jehosaphat spake of in-
ferior judges ; for that which the king doth
to others he doth by himself. Also, the
execution of the kingly power is from God ;
for the king is the servant, angel, legate,
minister of God, Rom. xiii. 6, 7. God pro-
perly and primarily is King, and King of
kings, and Lord of lords (1 Tim. vi. 15 ;
Rev. i. 5) ; all kings, related to him, are
kings equivocally, and in resemblance, and
he the only King.
Aiis. — 1. That which is in question is
never concluded, to wit, that " the king is
both immediately constituted and designed
king by God only, and not by the mediation
of the people ;" for when God reconcileth
and saveth men by pastors, he saveth them
by the Intervening action of men ; so he
scourgeth his people by men as by his sword,
(Psal. xvii. 14,) hand, staff, rod, (Isa. x. 5,)
and his hammer. Doth it follow that God
only doth immediately scourge his people,
and that wicked men have no more hand
and action in scourging his people than the
Prelate saith the people hath a hand in
making a king ? and that is no hand at all
by the Prelate's way. 2. We may borrow
the Prelate's argument : — Inferior judges
execute the judgment of the Lord, and
not the judgment of the king ; therefore,
by the Prelate's argument, God doth only
by immediate power execute judgment in
them, and the inferior judges are not God's
ministers, executing the judgment of the
Lord. But the conclusion is against all
truth, and so must the Prelate's argument
be ; and that inferior judges are the imme-
diate substitutes and deputies of God, is
hence proved, and shall be hereafter made
good, it' God will. 3. God is properly King
of kings, so is God properly causa causa-
rum, the Cause of causes, the Life of lifes,
the Joy of joys. What ! shall it then fol-
low that he worketh nothing in the crea-
tures by their mediation as causes? Be-
cause God is Light of lights, doth he not
enlighten the earth and air by the media-
tion of the sun ? Then God communicateth
not life mediately by generation, he causeth
not his saints to rejoice, with joy unspeak-
able and glorious, by the intervening medi-
ation of the Word. These are vain conse-
quences. Sovereignty, and all power and
virtue is in God infinitely ; and what vir-
tue and power of action is in the creatures,
as they are compared with God, are in
the creatures equivocally and in resem-
blance, and *«™ loin* in opinion rather than
really. Hence it must follow that second
causes work none at all, — no more than the
people hath a hand or action in making the
king, and that is no hand at all, as the Pre-
late saith. And God only and immediately
worketh all works in the creatures, because
both the power of working and actual work-
ing cometh from God, and the creatures, in
all their working, are God's instruments.
And if the Prelate argue so frequently from
power given of God, to prove that actual
reigning is from God immediately, — Deut.
viii. 18, The Lord " giveth the power to
get wealth," — will it follow that Israel get-
teth no riches at all, or that Gad doth not
mediately by them and their industry get
them ? I think not.
P. Prelate. — To whom can it be due to
give the kingly office but to Him only who
is able to give the endowment and ability
for the office ? Now God only and imme-
diately giveth ability to be a king, as the
sacramental anointing proveth, Josh. iii. 10.
24
LEX, REX ; OR,
Othniel is the first judge after Joshua ; and
it is said, " And the Spirit of the Lord
came upon him, and he judged Israel :" the
like is said of Saul and David.
Ans. — 1. God gave royal endowments
immediately, therefore he immediately now
maketh the king. It followeth not, for the
species of government is not that which for-
mally constituteth a king, for then Nero, Ca-
ligula, Julian, should not have been kings ;
and those who come to the crown by con-
quest and blood, are essentially kings, as the
Prelate saith. But be all these Othniels upon
whom the Spirit of the Lord cometh ? Then
they are not essentially kings who are babes
and children, and foolish and destitute of the
royal endowments ; but it is one thing to have
a royal gift, and another thing to be formally
called to the kingdom. David had royal
gifts after Samuel anointed him, but if you
make him king, before Saul's death, Saul
was both a traitor all the time that he per-
secuted David, and so no king, and also king
and God's anointed, as David acknowledgeth
him ; and, therefore, that spirit that came
on David and Saul, maketh nothing against
the people's election of a king, as the Spirit
of God is given to pastors under the New
Testament, as Christ promised ; but it will
not follow that the designation of the man
who is to be pastor should not be from the
church and from men, as the Prelate denieth
that either the constitution or designation of
the king is from the people, but from God
only. 2. I believe the infusion of the Spi-
rit of God upon the judges will not prove
that kings are now both constituted and de-
signed of God solely, only, and immediately;
for the judges were indeed immediately, and
for the most part extraordinarily, raised up
of God ; and God indeed, in the time of the
Jews, was the king of Israel in another man-
ner than he was the king of all the nations,
and is the king of Christian realms now,
and, therefore, the people's despising of Sa-
muel was a refusing that God should reign
over them, because God, in the judges, re-
vealed himself even in matters of policy, as
what should be done to the man that ga-
thered sticks on the Sabbath-day, and the
like, as he doth not now to kings.
P. Prelate. — Sovereignty is a ray of di-
vine glory and majesty, but this cannot be
found in people, whether you consider them
jointly or singly ; if you consider them sin-
gly, it cannot be in every individual man, for
sectaries say, That all are born equal, with
a like freedom ; and if it be not in the peo-
ple singly, it cannot be in them jointly, for
all the contribution in this compact and con-
tract, which they fancy to be human compo-
sition and voluntary constitution, is only by
a surrender of the native right that every
one had in himself. From whence, then,
can this majesty and authority be derived ?
Again, where the obligation amongst equals
is by contract and compact, violation of the
faith plighted in the contract, cannot in
proper terms be called disobedience or con-
tempt of authority. It is no more but a re-
ceding from, and a violation of, that which
was promised, as it may be in states or
countries confederate. Nature, reason, con-
science, Scripture, teach, that disobedience
to sovereign power is not only a violation of
truth and breach of covenant, but also high
disobedience and contempt, as is clear, 1 Sam.
x. 26. So when Saul (chap, xi.) sent a yoke
of oxen, hewed in pieces, to all the tribes,
the fear of the Lord fell on the people, and
they came out with one consent, 1 Sam. xi.
7 ; also, (Job xi. 18,) He looseth the bonds
of kings, that is, he looseth their authority,
and bringeth them into contempt ; and he
girdeth their loins with a girdle, that is, he
strengtheneth their authority, and maketh
the people to reverence them. Heathens
observe that there is Sum rf, some divine
thing in kings. Profane histories say, that
this was so eminent in Alexander the Great,
that it was a terror to his enemies, and a
powerful loadstone to draw men to compose
the most seditious councils, and cause his
most experienced commanders embrace and
obey his counsel and command. Some sto-
ries write that, upon some great exigency,
there was some resplendent majesty in the
eyes of Scipio. This kept Pharaoh from
lifting his hand against Moses, who charged
him so boldly with his sins. When Moses did
speak with God, face to face, in the mount,
this resplendent glory of majesty so awed
the people, that they durst not behold his
glory, Exod. xxxiv. ; this repressed the fury
of the people, enraged against Gideon from
destroying their idol, Judg. vi. ; and the fear
of man is naturally upon all living creatures
below, Gen. ix. So what can this reverence,
which is innate in the hearts of all subjects
toward their sovereigns, be, but the ordinance
unrepealable of God, and the natural effect
of that majesty of princes with which they
are endowed from above ?
Ans. — 1. 1 never heard any shadow of rea-
THE LAW A.\n THK I'Ul.M '/'..
son till now, and yet (because the lie hath
a latitude) here is but a shadow, which the
Prelate stole from M. Anton, de Dom. Ar-
chiepisc. Spalatensis ;x and I may say, confi-
dently, this Plagiarius hath not one line in
his book which is not stolen ; and, for the
present, Spalato's argument is but spilt, and
the nerves cut from it, while it is both bleed-
ing and lamed. Let the reader compare
them, and I pawn my credit he hath igno-
rantly clipped Spalato. But I answer, " So-
vereignty is a beam and ray (as Spalato
saith) of divine majesty, and is not either
formally or virtually in the people." It is
false that it is not virtually in the people ;
for there be two things in the judge, either
inferior or supreme, for the argument hold-
eth in the majesty of a parliament, as we
shall hear. (1.) The gift or grace of go-
verning (the Arminian Prelate will be of-
fended at this). (2.) The authority of go-
verning. The gift is supernatural, and is
not in man naturally, and so not in the
king ; for he is physically but a mortal
man, and this is a gift received, for Solo-
mon asked it by prayer from God. There
is a capacity passive in all individual men
for it. As for the official authority itself,
it is virtually in all in whom any of God's
image is remaining since the fall, as is clear,
as may be gathered from Gen. i. 28 ; yea,
the father, the master, the judge, have it
by God's institution, in some measure, over
son, servant, and subject, though it be more
in the supreme ruler ; and, for our purpose,
it is not x'equisite that authoritative majesty
should be in all, (what is in the father and
husband I hope to clear,) I mean, it needeth
not to be formally in all, and so all are born
alike and equal. But he who is a Papist, a
Socinian, an Arminian, and therefore de-
livered to Satan by his mother church, must
be the sectary, for we are where this Pre-
late left us, maintainers of the Protestant re-
ligion, contained in the Confession of Faith
and National Covenant of Scotland, when
this Demas forsook us and embraced the
world, 2. Though not one single man in
Israel be a judge or king by nature, nor
have in them formally any ray of royalty
or magistratical authority, yet it followeth
not that Israel, parliamentary convened,
hath no such authority as to name Saul
king in Mizpeh, and David king in Hebron,
1 Antonin. de Domiuis Archiepis. de dom. lib. 6,
c. 2, n. 5, 6, seq.
1 Sam. x. 24, 25 ; 1 Chron. xi. 12 ; xii. 38,
39. One man alone hath not the keys of
the kingdom of heaven ; (as the Prelate
dreameth) but it followeth not that many,
convened in a chiu'ch way, hath not this
power, Matt, xviii. 17 ; 1 Cor. v. 1 — 4.
One man hath not strength to fight against
an army of ten thousand ; doth it follow,
therefore, that an army of twenty thou-
sand hath not strength to fight against
these ten thousand ? Though one Paul
cannot synodically determine the question,
(Acts xv,) it followeth not that the apos-
tles, and elders, and brethren, convened
from divers churches, hath not power to
determine it in a lawful synod ; and, there-
fore, from a disjoined and scattered power,
no man can argue to a united power. So not
any one man is an inferior ruler, or hath
the rays and beams of a number of aristo-
cratical rulers ; but it followeth not that all
these men, combined in a city or society,
have not power, in a joint political body,
to choose inferior or aristocratical rulers.
3. The P. Prelate's reason is nothing. All
the contribution (saith he) in the compact
body to make a king, is only by a surrender
of the native right of every single man (the
whole being only a voluntary contribution).
How, then, can there be any majesty de-
rived from them ? I answer, Very well ;
for the surrender is so voluntary, that it is
also natural, and founded on the law of na-
ture, that men must have governors, either
many, or one supreme ruler. And it is vo-
luntary, and dependeth on a positive institu-
tion of God, whether the government be
by one supreme ruler, as in a monarchy, or
in many, as in an aristocracy, according as
the necessity and temper of the common-
wealth do most require. This constitution is
so voluntary, as it hath below it the law of
nature for its general foundation, and above
it, the supervenient institution of God, or-
daining that there should be such magis-
trates, both kings and other judges, because
without such, all human societies should be
dissolved. 4. Individual persons, in creat-
ing a magistrate, doth not properly surren-
der their right, which can be called a rioht ;
for they do but surrender their power of do-
ing violence to those of their fellows in that
same community, so as they shall not now
have moral power to do injuries without
punishment ; and this is not right or liberty
properly, but servitude, for a power to do
violence and injuries is not liberty, but ser-
26
LEX, REX J OR,
vitude and bondage. But the Prelate talk-
eth of royalty as of mere tyranny, as if it
were a proper dominion and servile empire
that the prince hath over his people, and not
more paternal and fatherly, than lordly or
- masterly. 5. He saith, " Violation of faith,
J plighted in a contract amongst equals, can-
i not be called disobedience ; but disobedience
j to the authority of the sovereign is not only
breach of covenant, but high disobedience and
contempt." But violation of faith amongst
equals, as equals, is not properly disobe-
dience ; for disobedience is betwixt a supe-
rior and an inferior : but violation of faith
amongst equals, when they make one of their
equals their judge and ruler, is not only vio-
lation of truth, but also disobedience. All
Israel, and Saul, while he is a private man
seeking his father's asses, are equals by cove-
nant, obliged one to another ; and so any in-
jury done by Israel to Saul, in that case, is
not disobedience, but only violation of faith.
But when all Israel maketh Saul their king,
and sweareth to him obedience, he is not
now their equal ; and an injury done to him
now, is both a violation of their faith, and
high disobedience also. Suppose a city of
aldermen, all equal amongst themselves in
dignity and place, take one of their number
and make him their mayor and provost — a
wrong done to him now, is not only against
the rules of fraternity, but disobedience to
one placed by God over them. 6. 1 Sam.
xi. 7, " The fear of the Lord fell on the
people, and they came out with one consent
to obey Saul;" therefore God hath placed
authority in kings, which is not in people.
It is true; because God hath transferred the
scattered authorities that are in all the peo-
ple, in one mass ; and, by virtue of his own
ordinance, hath placed them in one man,
who is king. What followeth ? That God
eonferreth this authority immediately upon
the king, without the mediation of any ac-
tion of the people ? Yea, the contrary ra-
ther followeth. 7- God looseth the bond of
kings ; that is, when God is to cast off kings,
he causeth them to loose all authority, and
maketh them come into contempt with the
people. But what doth this prove ? That
God taketh away the majesty and authority
of kings immediately ; and therefore God
gave to kings this authority immediately,
without the people's conveyance ? Yea, I
take the Prelate's weapon from him. God
doth not take the authority of the king
from him immediately, but mediately, by the
people's hating and .despising him, when
they see his wickedness, as the people see
Nero a monster — a prodigious blood-sucker.
Upon this, all the people contemn him and
despise him, and so the majesty is taken
from Nero and all his mandates and laws,
when they see him trample upon all laws,
divine and human, and that mediately by
the people's heart despising of his majesty ;
and so they repeat, and take again, that awe-
some authority that they once gave him.
And this proveth that God gave him the
authority mediately, by the consent of man.
8. Nor speaketh he of kings only, but (ver.
21) he poureth contempt Q'^'O^y su-
per munificos. Pineda. Aria. Mont, super
Principcs, upon nobles and great men ; and
this place may prove that no judges of the
earth are made by men. 9. The heathen
say, That there is some divinity in princes,
as in Alexander the Great and Scipio, to-
ward their enemies ; but this will prove that
princes and kings have a superiority over
those who are not their native subjects, for
something of God is in them, in relation to
all men that are not their subjects. If this
be a ground strong and good, because God
only, and independently from men, taketh
away this majesty, as God only and inde-
pendently giveth it, then a king is sacred to
all men, subjects or not subjects. Then it
is unlawful to make war against any foreign
king and prince, for in invading him or re-
sisting him, you resist that divine majesty of
God that is in him ; then you may not law-
fully flee from a tyrant, no more than you
may lawfully flee from God. 10. Scipio
was not a king, therefore this divine majesty
is in all judges of the earth, in a more or
less measure ; — therefore God, only and im-
mediately, may take this spark of divine ma-
jesty from inferior judges. It followeth not.
And kings, certainly, cannot infuse any spark
of a divine majesty on any inferior judges,
for God only immediately infuseth it in men ;
therefore it is unlawful for kings to take this
divinity from judges, for they resist God who
resist parliaments, no less than those who re-
sist kings. Scipio hath divinity in him as
well as Csesar, and that immediately from
God, and not from any king. 11. Moses
was not a king when he went to Pharaoh,
for he had not, as yet, a people. Pharaoh
was the king, and because Pharaoh was a
king, the divines of Oxford must say, His
majesty must not, in words of rebuke, be re-
sisted more than by deeds. 12. Moses' face
THE LAW AND THE PRINCE.
27
did shine as a prophet receiving the law
from God — not as a king. And is this sun-
shine from heaven upon the face of Nero
and Julian ? It must be, if it be a beam of
royal majesty, if this pratler say right, but
(2 Cor. iii. 7) this was a majesty typical,
which did adumbrate the glory of the law
of God, and is far from being a royalty due
to all heathen kings. 13. I would our king-
would evidence such a majesty in breaking
the images and idols of his queen, and of
papists about him. 14. The fear of Noah,
and the regenerated who are in covenant
with the beasts of the field, (Job v. 23,) is
upon the beasts of the earth, not by appro-
bation only, as the people maketh kings by
the Prelate's way ; nor yet by free consent,
as the people freely transfer their power to
him who is king. The creatures inferior to
man, have, by no act of free will, chosen
man to be their ruler, and transferred their
power to him, because they are, by nature,
inferior to man ; and God, by nature, hath
subjected the creatures to man, (Gen. i. 28,)
and so this proveth not that the king, by na-
ture, is above the people — I mean the man
who is king ; and, therefore, though God
had planted in the hearts of all subjects a
fear and reverence toward the king, upon
supposition that they have made him king,
it followeth not that this authority and ma-
jesty is immediately given by God to the
man who is king, without the intervening
consent of the people, for there is a native
fear in the scholar to stand in awe of his
teacher, and yet the scholar may willingly
give himself to be a disciple to his teacher,
and so give his teacher power over him.
Citizens naturally fear their supreme gover-
nor of the city, yet they give to the man
who is their supreme governor, that power
and authority which is the ground of awe
and reverence. A servant naturally feareth
his master, yet often he giveth his liberty,
and resigneth it up voluntarily to his mas-
ter; and this was not extraordinary amongst
the Jews, where the servant did entirely love
the master, and is now most ordinary when
servants do, for hire, tie themselves to such
a master. Soldiers naturally fear their
commanders, yet they may, and often do,
by voluntary consent, make such men their
commanders ; and, therefore, from this, it
followeth in no way that the governor of a
city, the teacher, the master, the comman-
der in war, have not their power and autho-
rity only and immediately from God, but
from their inferiors, who, by their freo con-
sent, appointed them for such places.
P. Prelate (Arg. 7, p. 51, 52).— This
seemeth, or rather is, an unanswerable argu-
ment,— No man hath power of life and
death but the Sovereign Power of life and
death, to wit, God, Gen. ix. 5. God saith
thrice he will require the blood of man at
the hands of man, and this power God hath
committed to God's deputy : whoso sheddeth
man's blood DIJO hy man shall die, — by
the king, for the world knew not any kind
of government at this time but monarchical,
and this monarch was Noah ; and if this
power be from God, why not all sovereign
power ? seeing it is homogeneous, and, as
jurists say, in indivisibili posita, a thing in
its nature indivisible, and that cannot be
distracted or impaired, and if every man
had the power of life and death, God should
not be the God of order.
The P. Prelate taketh the pains to prove
out of the text that a magistracy is estab-
lished in the text. Ans. 1. Let us consi-
der this unanswerable argument. (1.) It is
grounded upon a lie, and a conjecture never
taught by any but himself, to wit, that
CliO by, or in, or through man, must
signify a magistrate, and a king only. This
king was Noah. Never interpreter, nay,
not common sense can say, that no magis-
trate is here understood but a king. The
consequence is vain : His blood shall be
shed by man ; therefore by a magistrate ? it
followeth not ; therefore by a king ? it fol-
loweth not. There was not a king in the
world as yet. Some make Belus, the father
of Ninus, the first king, and the builder of
Babylon. This Ninus is thought the first
builder of the city after called Nineveh, and
the first king of the Assyrians. So saith
Quintus Curtius1 and others ; but grave au-
thors believe that Nimrod was no other than
Belus the father of Ninus. So saith Augus-
tine,2 Eusebius, Hieronym. ;3 and Eusebius4
maketh him the first founder of Babylon :
so saith Clemens,5 Pirerius,6 and Josephus
saith the same. Their times, their cruel
natures are the same. Calvin saith,7 Noah
1 Quintius Curtius, lib. 5.
2 Aug. de civ. Dei, lib. 16, c. 17.
3 Hieron. in Hos. ii.
4 Euseb. lib. 9, de prepar. Evan. c. 3.
6 Clemens recog. lib. 4.
6 Pirerius in Gen. x. 8, 9, disp. 3, n. 67. Illud quo-
que niihi fit percredible, Nimrod fuisse eundem, at-
que enim quem alii appellant Belum patrem Nini.
7 Calvin Com. in Gen. ix.
2;;
LEX, REX ; OR,
yet lived while Nimrod lived ; and the
Scripture saith, " Nimrod began to reign,
and be powerful on the earth." And Babel
was IH^ftE IT^NT tne beginning of
his kingdom. No writer, Moses nor any
other, can show us a king before Nimrod.
So Eusebius,1 Paul Orosius,2 Hieronym.,3
Josephus,4 say that he was the first king ;
and Tostatus Abulens.,5 and our own Cal-
vin, Luther,6 Musculus on the place, and
Ainsworth, make him the first king and the
founder of Babylon. How Noah was a king,
or there was any monarchical government
in the world then, the Prelate hath alone
dreamed it. There was but family-govern-
ment before this. 2. And if there be ma-
gistracy here established by God, there is
no warrant to say it is only a monarchy ;
for if the Holy Ghost intendeth a policy, it
is a policy to be established to the world's
end, and not to be limited (as the Prelate
doth) to Noah's days. All interpreters,
upon good ground, establish the same po-
licy that our Saviour speaketh of, when he
saith, " He shall perish by the sword who
taketh the sword," Matt. xxvi. 52. So the
Netherlands have no lawful magistrate who
hath power of life and death, because their
government is aristocratical, and they have
no king. So all acts of taking away the lives
of ill-doers shall be acts of homicide in Hol-
land. How absurd ! 3. Nor do I see how
the place, in the native scope, doth establish
a magistracy. Calvin saith not so ;7 and in-
terpreters deduce, by consequence, the power
of the magistrate from this place. But the
text is general, — He who killeth man shall
be killed by man : either he shall fall into
the magistrate's hand, or into the hand of
some murderer; so Calvin,8 Marlorat, &c
He speaketh, saith Pirerius, not of the fact
and event itself, but of the deserving of
murderers ; and it is certain all murderers
1 Euseb. prolog. 1 Chron.
a Paul Orosius, lib. 1. de Ormesta mundi.
3 Hieron. in traditio Hebrei in Gen.
* 'I 'ostat Abuhns. in Gen. x. 9.
5 Josephus in Gen* x.
6 Lutb. Cora. ib.
7 Calvin Com. Quanquam hoc loco non simpliciter
fertur lex politica, ut plcctautur boinicide.
s Calvin in lect.
9 Pirerius in Gen. ix. 3, 4, n.37. Vatablus hath
diver- interpretations : In homine, i.e. in conspectu
omnium et publice, aut in homine, i. e. hominibus
testiticantibus ; alii, in homine, i. e. propter homin-
era, quia occidit hominem, jussu in agist ratus. Caje-
tan expotittdetb. D~1N^ contra hominem, in de-
spite of man.
fall not into the magistrate's hands ; but he
saith, by God and man's laws they ought to
die, though sometime one murderer killeth
another. 4. The sovereign power is given
to the king, therefore, it is given to him im-
mediately without the consent of the people.
It followeth not. 5. Power of life and death
is not given to the king only, but also to
other magistrates, yea, and to a single pri-
vate man in the just defence of his own life.
Other arguments are but what the Prelate
hath said already.
QUESTION VIII.
WHETHER THE PRELATE PROVETH BY FORCE
OF REASON THAT THE PEOPLE CANNOT BE
CAPABLE OF AN* POWER OF GOVERNMENT.
P. Prelate. — God and nature giveth no
power in vain, and which may not be re-
duced into action ; but an active power, or
a power of actual governing, was never acted
by the community ; therefore this power can-
not be seated in the community as in the
prime and proper subject, and it cannot be
in every individual person of a community,
because government intrinsically and essen-
tially includeth a special distinction of go-
vernors, and some to be governed ; and, to
speak properly, there can no other power be
conceived in the community, naturally and
properly, but only potestas passiva regimi-
nis, a capacity or susceptibility to be go-
verned, by one or by more, just as the first
matter desireth a form. This obligeth all, by
the dictate of nature's law, to submit to ac-
tual government ; and as it is in every indi-
vidual person, it is not merely and properly
voluntary, because, howsoever nature dictates
that government is necessary for the safety of
the society, yet every singular person, by cor-
ruption and self-love, hath a natural aver-
sion and repugnance to submit to any : every
man would be a king himself. This univer-
sal desire, appctitus universalis aut natu-
ralis, or universal propension to government,
is like the act of the understanding assenting
to the first principles of truth, and to the
will's general propension to happiness in ge-
neral, which propension is not a free act, ex-
cept our new statists, as they have changed
their faith, so they overturn true reason. It
will puzzle them infinitely to make anything,
in its kind passive, really active and collative
THE LAW AND THE PRINCE.
29
of positive acts and effects. All know no
man can give what he hath not. An old
philosopher would laugh at him who would
say, that a matter perfected and actuated
by union with a form, could at pleasure
shake off its form, and marry itself to an-
other. They may as well say, every wife
hath power to resume her freedom and
marry another, as that any such power ac-
tive is in the community, or any power to
cast off monarchy.
Ans. — 1. The P. Prelate might have
thanked Spalato for this argument, but he
doth not so much as cite him, for fear his
theft be apprehended ; but Spalato hath it
set down with stronger nerves than the Pre-
late's head was able to copy out of him. But
Jac. de Almain,1 and Navarrus,2 with the
Parisian doctors, said in the Council of Pa-
ris, " that politic power is immediately from
God, but first from the community ;" but so
that the community apply their power to
this or that government — not of liberty, but
by natural necessity — but Spalato and the
plagiary Prelate do both look beside the
book. The question is not now concerning
the vis rectiva, the power of governing in
the people, but concerning the power of go-
vernment ; for these two differ much. The
former is a power of ruling and monarchical
commanding of themselves. This power is
not formally in the people, but only virtu-
ally ; and no reason can say that a virtual
power is idle because it cannot be actuated
by that same subject that it is in ; for then
it should not be a virtual, but a formal
power. Do not philosophers say such an
herb virtually maketh hot? and can the
sotti-h Prelate say this virtual power is idle,
and in vain given of God, because it doth
not formally heat your hand when you touch
it. 2. The P. Prelate, who is excommuni-
cated for Popery, Socinianism, Arminianism,
and is now turned apostate to Christ and his
church, must have changed his faith, not we,
and be unreasonably ignorant, to press that
axiom, " That the power is idle that cannot
be reduced to acts ;" for a generative power
is given to living and sensitive creatures,
1 M. Anto. de domini. Arch. Spalatens. lib. 6, c.
2, n. 5, 6. Plebs potius habet a natura, non tain vim
active rectivam aut gubernativam, quam inclinatio-
nem passive regibilem (ut ita loquav) et gubernabi-
lem, qua volens et libens sese submittit rectoribus,
&c.
2 Almain de potest et La. 1, q. 1, c. 1, 6, et q. 2, 3, 5.
3 Nem. don jud. not. 3, n 85.
—this power is not idle though it be not
reduced in act by all and every individual
sensitive creature. A power of seeing is
given to all who naturally do, or ought to
see, yet it is not an idle power because di-
vers are blind, seeing it is put forth in action
in divers of the kind ; so this power in the
community is not idle because it is not put
forth in acts in the people in which it is vir-
tually, but is put forth in action in some of
them whom they choose to be their gover-
nors ; nor is it reasonable to say that it
should be put forth in action by all the peo-
ple, as if all should be kings and governors.
But the question is not of the power of go-
verning in the people, but of the power of
government, that is, of the power of making
governors and kings ; and the community
doth put forth in act this power, as a free,
voluntary, and active power ; for (1.) a com-
munity transplanted to India, or any place
of the world not before inhabited, have a
perfect liberty to choose either a monar-
chy, or a democracy, or an aristocracy ; for
though nature incline them to government
in general, yet are they not naturally de-
terminated to any one of those three more
than another. (2.) Israel did of their own
free will choose the change of government,
and would have a king as the nations had ;
therefore they had free will, and so an ac-
tive power so to do, and not a passive in-
clination only to be governed, such as Spa-
lato saith agreeth to the first matter. (3.)
Royalists teach that a people under demo-
cracy or aristocracy have liberty to choose
a king ; and the Romans did this, there-
fore they had an active power to do it, —
therefore the Prelate's simile crooks : the
matter at its pleasure cannot shake off its
form, nor the wife cast off her husband be-
ing once married; but Barclaius, Grotius,
Arnisfens, Blackwood, and all the royalists,
teach that the people under any of these
two forms of democracy or aristocracy may
resume their power, and cast off these forms
and choose a monarch ; and if monarchy be
the best government, as royalists say, they
may choose the best. And is this but a pas-
sive capacity to be governed ? (4.) Of ten
men fit for a kingdom they may design one,
and put the crown on his head, and refuse
the other nine, as Israel crowned Solomon
and refused Adonijah. Is this not a volun-
tary action, proceeding from a free, active,
elective power ? It will puzzle the preten-
ded Prelate to deny this, — that which the
30
LEX, REX ; OR,
community doth freely, they do not from
such a passive capacity as is in the first
matter in regard of the form. 3. It is true
that people, through corruption of nature,
are averse to submit to governors " for con-
science sake, as unto the Lord," because the
natural man, remaining in the state of na-
ture, can do nothing that is truly good, but it
is false that men have no active moral power
to submit to superiors, but only a passive ca-
pacity to be governed. He quite contradict-
eth himself; for he said before, (c. 4, p. 49,)
that there is an " innate fear and reverence
in the hearts of all men naturally, even in
heathens, toward their sovereign ;" yea, as
we have a natural moral active power to
love our parents and superiors, (though it
be not evangelically, or legally in God's
court, good) and so to obey their command-
ments, only we are averse to penal laws of
superiors. But this proveth no way that we
have only by nature a passive capacity to
government ; for heathens have, by instinct
of nature, both made laws morally good,
submitted to them, and set kings and judges
over them, which clearly proveth that men
have an active power of government by na-
ture. Yea, what difference maketh the
Prelate betwixt men and beasts ? for beasts
have a capacity to be governed, even lions
and tio-ers ; but here is the matter, if men
have any natural power of government, the
P. Prelate would have it, with his breth-
ren the Jesuits and Arminians, to be not
natural, but done by the help of universal
grace ; for so do they confound nature and
grace. But it is certain our power to sub-
mit to rulers and kings, as to rectors, and
guides, and fathers, is natural ; to submit to
tyrants in doing ills of sin is natural, but in
sufferinT ills of punishment is not natural.
" No man can give that which he hath not,"
is true, but that people have no power to
make their governors is that which is in
question, and denied by us. This argu-
ment doth prove that people hath no power
to appoint aristocrat ical rulers more than
kings, and so the aristocratical and demo-
cratical rulers are all inviolable and sacred
as the king. By this the people may not
resume their freedem if they turn tyrants
and oppressors. This the Prelate shall deny,
for he averreth, (p. 96,) out of Augustine,
that the people may, without sin, change a
corrupt democracy into a monarchy.
P. Prelate (pp. 95, 96). — If sovereignty
be originally inherent in the people, then
democracy, or government by the people,
were the best government, because it com-
eth nearest to the fountain and stream of
the first and radical power in the people,
yea, and all other forms of government were
unlawful ; and if sovereignty be natively in-
herent in the multitude it must be proper
to every individual of the community, which
is against that false maxim of theirs, Quisque
nascitur liber. Every one by nature is born
a free man, and the posterity of those who
first contracted with their elected king are
not bound to that covenant, but, upon their
native right and liberty, may appoint an-
other king without breach of covenant. The
posterity of Joshua, and the elders in their
time, who contracted with the Gibeonites to
incorporate them, though in a serving con-
dition, might have made their fathers' go-
vernment nothing.
Ans. — 1. The P. Prelate might thank
Spalato for this argument also,1 for it is
stolen ; but he never once named him, lest
his theft should be apprehended. So are
his other arguments stolen from Spalato;
but the Prelate weakeneth them, and it is
seen stolen goods are not blessed. Spalato
saith, then, by the law of nature every com-
monwealth should be governed by the peo-
ple, and by the law of nature the people
should be under the worst government ; but
this consequence is nothing ; for a commu-
nity of many families is formally and of
themselves under no government, but may
choose any of the three ; for popular govern-
ment is not that wherein all the people are
rulers, for this is confusion and not govern-
ment, because all are rulers, and none are
governed and ruled. But in popular go-
vernment many are chosen out of the peo-
ple to rule ; and that this is the worst go-
vernment is said gratis, without warrant ;
and if monarchy be the best of itself, yet,
when men are in the state of sin, in some
other respects it hath many inconveniences.
2. I see not how democracy is best because
nearest to the multitude's power of making
a king ; for if all the three depend upon the
free will of the people, all are alike afar off,
and alike near hand, to the people's free
choice, according as they see most conducive
to the safety and protection of the common-
wealth, seeing the forms of government are
not more natural than politic incorporations
of cities, yea, than of shires ; but from a po-
i Spalatensis, p. 648.
THE LAW AND THE PRINCE.
31
sitive institution of God, who erecteth this
rather than that, not immediately now, but
mediately, by the free will of men ; no one
cometh formally, and ex natur a rei, nearer
to the fountain than another, except that
materially democracy may come nearer to
the people's power than monarchy, but the
excellency of it above monarchy is not hence
concluded ; for by this reason the number of
four should be more excellent than the num-
ber of five, of ten, of a hundred, of a thou-
sand, or of millions, because four cometh
near to the number of three, which Aristotle
calleth the first perfect number, cut addi-
tur <rl 3-Sv of which yet formally all do alike
share in the nature and essence of number.
2. It is denied that it follow eth from this
antecedent, that the people have power to
choose their own governors ; therefore all
governments except democracy, or govern-
ment by the people, must be sinful and un-
lawful. (1.) Because government by kings
is of divine institution, and of other judges
also, as is evident from God's word, Rom.
xiii. 1 — 3; Deut. xvii. 14; Prov. viii. 15,
16 ; 1 Pet. ii. 13, 14 ; Psal. ii. 10, 11, &c.
(2.) Power of choosing any form of govern-
ment is in the people ; therefore there is
no government lawful but popular govern-
ment. It followeth no ways ; but presup-
poseth that power to choose any form of
government must be formally actual go-
vernment; which is most false, yea, they
be contrary, as the prevalency or power and
the act are contrary ; so these two are con-
trary, or opposite. Neither is sovereignty,
nor any government, formally inherent in
either the community by nature, nor in any
one particular man by nature ; and that
every man is born free, so as no man, ra-
ther than his brother, is born a king and a
ruler, I hope, God willing, to make good,
so as the Prelate shall never answer on the
contrary. 3, It followeth not that the pos-
terity living, when their fathers made a co-
venant with their first elected king, may
without any breach of covenant on the king's
part, make void and null their fathers' elec-
tion of a king, and choose another king, be-
cause the lawful covenant of the fathers, in
point of government, if it be not broken,
tyeth the children, but it cannot deprive
them of their lawful liberty naturally inhe-
rent in them to choose the fittest man to be
king ; but of this hereafter more fully. 4.
Spalato addeth, (the Prelate is not a faith-
ful thief,) " If the community by the law of
nature have power of all forms of govern-
ment, and so should be, by nature, under
popular government, and yet should refuse
a monarchy and an aristocracy," yet, Au-
gustine addeth, 2 " If the people should pre-
fer their own private gain to the public good,
and sell the commonwealth, then some good
man might take their liberty from them,
and, against their will, erect a monarchy or
an aristocracy," But the Prelate (p. 97)
and Augustine supposeth the people to be
under popular government. This is not our
case ; for Spalato and the Prelate presup-
poseth by our grounds that the people by
nature must be under popular government,
Augustine dreameth no such thing, and we
deny that by nature they are under any
form of government. Augustine, in a case
most considerable thinketh one good and
potent man may take the corrupt people's
power of giving honours, and making rulers
from them, and give it to some good men,
few or many, or to one ; then Augustine
layeth down as a ground that which Spalato
and the Prelate denieth, — that the people
hath power to appoint their own rulers ;
otherwise, how could one man take that
power from them ? The Prelate's fifth ar-
gument is but a branch of the fourth argu-
ment, and is answered already.
P. Prelate (chap, 11). — He would prove
that kings of the people's making are not
blessed of God. The first creature of the
people's making was Abimelech (Judg. jx.
22), who reigned only three years, well near
Antichrist's time of endurance. He came
to it by blood, and an evil spirit rose betwixt
him and the men of Sechem, and he made
a miserable end. The next was Jeroboam,
who had this motto, He made Israel to sin.
The people made him king, and he made the
same pretence of a glorious reformation that
our reformers now make : new calves, new al-
tars, new feasts are erected ; they banish the
Levites and take in the scum and dross of the
vulgar, &c. Every action of Christ is our in-
struction. Christ was truly born a king, not-
withstanding, when the people would make
i Spalato, 16.
a August, de lib. arb.,
populus rem privatum
beat venale suffragium <
nores amant, regnum in
committat ; non ne item
vir bonus qui plurimum
potestatem dandi honore
vcl etiam unjus redregat
lib. 1, c. 6. Si depravatus
Reipub. preferat. atque ha-
:or ruptusque ab lis qui lio-
sefactiosis consecleratisque
recte, si quis tunc extilerit
possit, adimat huic populo
s, et in paveorum bonorum,
arbitrium ?
32
LEX, REX ; OR,
him a king, he disclaimed it — he would not
he an arbiter betwixt two brethren differ-
ing.
Ans. — I am not to follow the Prelate's
order every way, though, God willing, I
shall reach him in the forthcoming chapters.
Nor purpose I to answer his treasonable
railing against his own nation, and the
judges of the land, whom God hath set over
this seditious excommunicated apostate. He
layeth to us frequently the Jesuit's tenets,
when as he is known himself to be a papist.
In this argument he saith, Abimelech did
reign only three years, well near Anti-
christ's reign. Is not this the basis and
the mother principle of popery, That the
Pope is not the Antichrist, for the Pope
hath continued many ages? He is not
an individual man, but a race of men ; but
the Antichrist, saith Belarmine, Staple-
ton, Becanus, and the nation of Jesuits and
poplings, shall be one individual man — a
born Jew, and shall reign only three years
and a half. But, 1. The argument from
success proveth nothing, except the Prelate
prove their bad success to be from this, be-
cause they were chosen of the people. When
as Saul chosen of God, and most of the kings
of Israel and Judah, who, undeniably, had
God's calling to the crown, were not blessed
of God ; and their government was a ruin to
both people and religion, as the people were
removed to all the kingdoms of the earth,
for the sins of Manasseh, Jer. xv. 4. Was
therefore Manasseh not lawfully ^called to
the crown? 2. For his instance of kings
unlawfully called to the throne, he bring-
eth us whole two, and telleth us that he
doubteth, as many learned men do, whe-
ther Jeroboam was a king by permission
only, or by a commission from God. 3.
Abimelech was cursed, because he wanted
God's calling to the throne; for then Is-
rael had no king, but judges, extraordinarily
raised up by God ; and God did not raise
him at all, only he came to the throne by
blood, and carnal reasons moving the men
of Sechem to advance him. The argument
presupposeth that the whole lawful calling of
a king is the voices of the people. This we
never" taught, though the Prelate make con-
quest a just title to a crown, and it is but a
title of blood and rapine. 4. Abimelech
was not the first king, but only a judge.
All our divines, with the word of God, mak-
eth Saul the first king. 5. For Jeroboam
had God's word and promise to be king,
1 Kings xi. 34 — 38. But, in my weak
judgment, he waited not God's time and
way of coming to the crown ; but that his
coming to the throne was unlawful, because
he came by the people's election, is in ques-
tion. 6. That the people's reformation, and
their making a new king, was like the king-
dom of Scotland's reformation, and the par-
liament of England's way now, is a traitor-
ous calumny. For, 1. It condemneth the
king, who hath, in parliament, declared all
their proceedings to be legal, Behoboam
never declared Jeroboam's coronation to be
lawful, but, contrary to God's word, made
war against Israel. 2. It is false that Israel
pretended religion in that change. The
cause was the rough answer given to the
supplication of the estates, complaining of
the oppression they were under in Solo-
mon's reign. 3. Beligion is still subjected
to policy by prelates and cavaliers, not by
us in Scotland, who sought nothing but re-
formation of religion, and of laws so far as
they serve religion, as our supplications, de-
clarations, and the event proveth. 4. We
have no new calves, new altars, new feasts,
but profess, and really do hazard, life and
estate, to put away the Prelate's calves,
images, tree-worship, altar-worship, saints,
feast-days, idolatry, masses ; and nothing is
said here but Jesuits, and Canaanites, and
Baalites, might say, (though falsely) against
the reformation of Josiah. Truth and pu-
rity of worship this year is new in relation
to idolatry last year, but it is simpliciter
older. 5. We have not put away the Lord's
priests and Levites, and taken in the scum
of the vulgar, but have put away Baal's
priests, such as excommunicated Prelate
Maxwell and other apostates, and resumed
the faithful servants of God, who were
deprived and banished for standing to the
Protestant faith, sworn to by the prelates
themselves. 6. Every action of Christ, such
as his walking on the sea, is not our instruc-
tion in that sense, that Christ's refusing a
kingdom is directly our instruction. And
did Christ refuse to be a king, because the
people would have made him a king ? That
is, non causa pro causa, he refused it, be-
cause his kingdom was not in this world, and
he came to suffer for men, not to reign over
man. 7. The Prelate, and others who were
lords of session, and would be judges of men's
inheritances, and would usurp the sword by
bein<r lords of council and parliament, have
refused to be instructed by every action of
THE LAW AND THE PIUXCK.
Christ, who would not judge betwixt bro-
ther and brother.
P. Prelate. — Jephthah came to be judge
by covenant betwixt him and the Gilead-
ites. Here you have an interposed act of
man, yet the Lord himself, in authorising
him as judge, vindicateth it no less to him-
self, than when extraordinarily he autho-
rised Gideon and Samuel, 1 Sam. xii, 11 ;
therefore, whatsoever act of man interven-
eth, it contributeth nothing to royal autho-
rit — it cannot weaken or repeal it.
Ans. — It was as extraordinary that Jeph-
thah, a bastard and the son of an harlot,
should be judge, as that Gideon should be
judo-e, God vindicateth to himself, that he
giveth his people favour in the eyes of their
enemies. But doth it follow that the ene-
mies are not agents, and to be commended
for their humanity in favouring the people
of God ? So Psal. lxv. 9, 10, God maketh
corn to grow, therefore clouds, and earth,
and sun, and summer, and husbandry, con-
tributeth nothing to the growing of corn.
But this is but that which he said before.
We errant that this is an eminent and singu-
lar act of God's special providence, that he
moveth and boweth the wills of a great mul-
titude to promote such a man, who, by na-
ture, cometh no more out of the womb a
crowned king, than the poorest shepherd in
the land ; and it is an act of grace to endue
him with heroic and royal parts for the go-
vernment. But what is all this ? Doth it
exclude the people's consent ? In no ways.
So the works of supernatural grace, as to
love Christ above all things, to believe in
Christ in a singular manner, are ascribed to
the rich grace of God, But can the Pre-
late say mat the understanding and will, in
these acts, are merely passive, and contri-
buteth no more than the people contribu-
teth to royal authority in the king? and
that is just nothing by the Prelate's way.
And we utterly deny, that as water in bap-
tism hath no action at all in the working of
remission of sins, so the people hath no in-
fluence in making a king ; for the people are
worthier and more excellent than the king,
and they have an active power of ruling and
directing themselves toward the intrinsical
end of human policy, which is the external
safety and peace of a society, in so far as
there are moral principles of the second ta-
ble, for this effect, written in their heart ;
and, therefore, that royal authority which,
by God's special providence, is united in one
king, and, as it were, over-gilded and lus-
tred with princely grace and royal endow-
ments, is diffused in the people, for the peo-
ple hath an after-approbative consent in
making a king, as royalists confess water
hath no such action in producing grace,
QUESTION IX.
WHETHER OR NO SOVEREIGNTY IS SO FROM
THE PEOPLE, THAT IT REMAINETH IN THEM
IN SOME PART, SO AS THEY MAY, IN CASE
OF NECESSITY, RESUME IT.
The Prelate will have it Babylonish con-
fusion, that we are divided in opinion. Je-
suits (saith he) place all sovereignty in the
community. Of the sectaries, some warrant
any one subject to make away his king, and
such a work is no less to be rewarded than
when one kilieth a wolf. Some say this
power is in the whole community ; some
will have it in the collective body, not con-
vened by warrant or writ of sovereignty ;
but when necessity (which is often fancied)
of reforming state and church, calleth them
together ; some in the nobles and peers ;
some in the three estates assembled by the
king's writ ; some in the inferior judges,
I answer, If the Prelate were not a Je»
suit himself, he would not bid his brethren
take the mote out of their eye ; but there is
nothing here said but what Barclaius1 said
better before this plagiarius. To which I
answer, We teach that any private man
may kill a tyrant, void of all title ; and that
great Royalist saith so also. And if he have
not the consent of the people, he is an usur-
per, for we know no external lawful calling
that kings have now, or their family, to the
crown, but only the call of the people. All
other calls to us are now invisible and un-
known ; and God would not command us to
obey kings, and leave us in the dark, that
we shall not know who is the king, The
Prelate placeth his lawful calling to the
crown, in such an immediate, invisible, and
subtle act of omnipotency, as that whereby
God conferreth remission of sins, by sp ink-
ling with water in baptism, and that where-
i Barclaius contr. Monarch, lib. 4, c. 10, p. 268,
ut hostes publicos non solum ab universo populo,
sed a singulis etiam impeti osedique jure optimo
posse tota Antiquitas ceusuit.
34
LEX, REX ;
by God directed Samuel to anoint Said and
David, not Eliab, nor any other brother.
It is the devil in the P. P., not any of us,
who teach that any private man may kill a
lawful king, though tyrannous in his go-
vernment. For the subject of royal power,
we affirm, the first, and ultimate, and native
subject of all power, is the community, as
reasonable men naturally inclining to a so-
ciety ; but the ethical and political subject,
or the legal and positive receptacle of this
power, is various, according to the various
constitutions of the policy. In Scotland and
England, it is the three estates of parlia-
ment ; in other nations, some other judges
or peers of the land. The Prelate had no
more common sense for him to object a
confusion of opinion to us, for this, than to
all the commonwealths on earth, because
all have not parliaments, as Scotland hath.
All have not constables, and officials, and
churchmen, and barons, lords of council,
parliaments, &c., as England had : but the
truth is, the community, orderly convened,
as it includeth all the estates civil, have
hand, and are to act in choosing their ru-
lers. I see not what privilege nobles have,
above commons, in a court of parliament,
by God's law ; but as they are judges, all
are equally judges, and all make up one
congregation of God's. But the question
now is, If all power of governing (the Pre-
late, to make all the people kings, saith, if
all sovereignty) be so in the people that they
retain power to guard themselves against ty-
ranny ; and if they retain some of it, habitu,
in habit, and in their power. I am not now
unseasonably, according to the Prelate's or-
der, to dispute of the power of lawful defence
against tyranny ; but, I lay down this maxim
of divinity ; Tyranny being a work of Satan,
is not from God, because sin, either habitual
or actual, is not from God : the power that
is, must be from God ; the magistrate, as
magistrate, is good in nature of office, and
the intrinsic end of his office, (Rom. xiii. 4)
for he is the minister of God for thy good ;
and, therefore, a power ethical, politic, or
moral, to oppress, is not from God, and is
not a power, but a licentious deviation of a
power ; and is no more from God, but from
sinful nature and the old serpent, than a li-
cense to sin. God in Christ giveth pardons
of sin, but the Pope, not God, giveth dis-
pensations to sin. To this add, if for na-
ture to defend itself be lawful, no commu-
nity, without sin, hath power to alienate
and give away this power ; for as no power
given to man to murder his brother is of
God, so no power to suffer his brother to be
murdered is of God ; and no power to suf-
fer himself, a fortiori, far less can be from
God. Here I speak not of physical power,
for if free will be the creature of God, a
physical power to acts which, in relation to
God's law, are sinful, must be from God.
But I now follow the P. Prelate (c. ix.,
p. 101, 102). — Some of the adversaries, as
Buchanan, say that the parliament hath no
power to make a law, but only ■x^ov\ivIm
without the approbation of the community.
Others, as the Observator, say, that the right
of the gentry and commonalty is entirely in
the knights and burgesses of the House of
Commons, and will have their orders irre-
vocable. If, then, the common people can-
not resume their power and oppose the par-
liament, how can tables and parliaments re-
sume their power and resist the king ?
Ans. — The ignorant man should have
thanked Barclaius for this argument, and
yet Barclaius need not thank him, for it
hath not the nerves that Barclaius gave it.
But I answer, 1. If the parliament should
have been corrupted by fair hopes (as in our
age we have seen the like) the people did well
to resist the Prelate's obtruding the Mass
Book, when the lords of the council pressed
it, against all law of God and man, upon
the kingdom of Scotland ; and, therefore, it
is denied that the acts of parliament are ir-
revocable. The observator said they were
irrevocable by the king, he being but one
man ; the P. Prelate wrongeth him, for he
said only, they have the power of a law,
and the king is obliged to consent, by his
royal office, to all good laws, and neither
king nor people may oppose them. Buch-
anan said, Acts of parliament are not laws,
obliging the people, till they be promul-
gated ; and the people's silence, when they
are promulgated, is their approbation, and
maketh them obligatory laws to them ; but
if the people speak against unjust laws, they
are not laws at all: and Buchanan knew
the power of the Scottish parliament better
than this ignorant statist. 2. There is not
like reason to grant so much to the king, as
to parliaments, because, certainly, parlia-
ments who make kings under God, or above
any one man, and they must have more au-
thority and wisdom than any one king, ex-
cept Solomon (as base flatterers say) should
j return to the thrones of the earth. And as
THE LAW AXD THE PRINXE.
85
the power to make just laws is all in the
parliament, only the people have power to
resist tyrannical laws. The power of all
the parliament was never given to the king
by God. The parliament are as essentially
judges as the king, and, therefore, the king's
deed may well be revoked, because he acteth
nothing as king, but united with his great
or lesser council, no more than the eye can
see, being separated from the body. The
peers and members of parliament have more
than the king, because they have both their
own power, being parts and special members
of the people, and, also, they have their
high places in parliament, either from the
people's express or tacit consent. 3. We
allow no arbitrary power to the parliament,
because their just laws are irrevocable ; for
the irrevocable power of making just laws
doth argue a legal, not an irrevocable, ar-
bitrary power ; nor is there any arbitrary
power in the people, or in any mortal man.
But of the covenant betwixt king and peo-
ple hereafter.
P. Prelate (c. 10, p. 105). — If sovereign
power be habitually in the community, so
as they may resume it at their pleasure,
then nothing is given to the king but an
empty title ; for, at the same instant, he
receiveth empire and sovereignty, and lay-
eth down the power to rule or determine
in matters which concern either private or
public good, and so he is both a king and a
subject.
Ans. — This naked consequence the Pre-
late saith and proveth not, and we deny it,
and give this reason, The king receiveth
royal power with the states to make good
laws, and power by his royalty to execute
those laws, and this power the community
hath devolved in the hands of the king and
states of parliament ; but the community
keepeth to themselves a power to resist
tyranny, and to coerce it, and eatemis in
so far is Saul subject, that David is not to
compear before him, nor to lay down Go-
liah's sword, nor disband his army of de-
fence, though the king should command
him so to do.
P. Prelate (c. xvi. pp. 105— 107).— By
all politicians, kings and inferior magistrates
are differenced by their different specific en-
tity, but by this they are not differenced ;
nay, a magistrate is in a better condition
than a king, for the magistrate is to judge
by a known statute and law, and cannot be
censured and punished but by law. But the
king is censurable, yea, disabled by the mul-
titude ; yea, the basest of subjects may cite
and convent the king, before the underived
majesty of the community, and he may be
judged by the arbitrary law that is in the
closet of their hearts, not only for real mis-
demeanour, but for fancied jealousies. It will
be said, good kings are in danger ; the con-
trary appeareth this day, and ordinarily the
best are in greatest danger. No govern-
ment, except Plato's republic, wanteth in-
commodities : subtle spirits may make them
apprehend them. The poor people, bewitch-
ed, follow Absalom in his treason; they strike
not at royalty at first, but labour to make the
prince naked of the good council of great
statesmen, &c.
Ans. — Whether the king and the under
magistrate differ essentially, we shall see.
1. The P. Prelate saith all politicians grant
it, but he saith untruth. He bringeth the
power of Moses and the judges to prove
the power of kings ; and so either the judges
of Israel and the kings differ not essential-
ly, or then the Prelate must correct the
spirit of. God, terming one book of Scrip-
ture 0O7D Kings, and another CtOSIJ^
Judges, and make the book of Kings the
book of Judges. 2. The magistrate's con-
dition is not better than the king's, because
the magistrate is to judge by a known sta-
tute and law, and the king not so. God
moulded the first king, (Deut. xvii. 18,)
when he sitteth judging on his throne, to
look to a written copy of the law of God, as
his rule. Now, a power to follow God's law
is better than a power to follow man's sinful
will ; so the Prelate putteth the king in a
worse condition than the magistrate, not we,
who will have the king to judge according
to just statutes and laws. 3. Whether the
king be censurable and deposable by the
multitude, he cannot determine out of our
writings. 4. The community's law is the
law of nature — not their arbitrary lust. 5.
The Prelate's treasonable railings I cannot
follow. He saith that we agree not ten of
us to a positive faith, and that our faith is
negative ; but his faith is Privative, Popish,
Socinian, Arminian, Pelagian, and worse, for
he was one of that same faith that we are
of. Our Confession of Faith is positive, as
the confession of all the reformed churches;
but I judge he thinketh the Protestant faith
of all the reformed churches but negative.
The incommodities of government, before
our reformation, were not fancied, but prin-
36
ted by authority. All the b:dy of popery
was printed and avowed as the doctrine of
the Church of Scotland and England, as
the learned author, and my much respected
brother, evidenceth in his Ludensium, av™
xxruxptris, the Canterburian Self-conviction.
The parliament of England was never yet
found guilty of treason. The good counsel-
lors of great statesmen, that parliaments of
both kingdoms would take from the king's
majesty, are a faction of perjured Papists,
Prelates, Jesuits, Irish cut-throats, Stra-
fords, and Apostates ; subverters of all laws,
divine, human, of God, of church, of state.
P. Prelate (c. 15, pp. 147, 148).— In
whomsoever tliis power of government be it
is the only remedy to supply all defects, and
to set right whatever is disjointed in church
and state, and the subject of this superin-
tending power must be free from all error
in judgment and practice, and so we have a
pope in temporalibus ; and if the parlia-
ment err the people must take order with
them, else God hath left church and state
remediless.
Ans. — 1. This is stolen from Barclaius
also, who saith,1 Si Rex regnum suum ali-
enee clitioni manciparit, regno eadit : " If
the king shall sell his kingdom, or enslave it
to a foreign power, he falleth from all right
to his kingdom." But who shall execute
any such law against him ? — not the people,
not the peers, not the parliament ; for this
mancipium ventris et aulee, this slave saith,
(p. 149,) " I know no power in any to pun-
ish or curb sovereignty but in Almighty
God." 2. We see no superintending power
on earth, in king or people, which is infal-
lible, nor is the last power of taking order
with a prince who enslaveth his kingdom to
a foreign power, placed by us in the people
because they cannot err. Court flatterers,
who teach that the will of the prince is the
measure of all right and wrong, of law and
no law, and above all law, must hold that
the king is a temporal pope, both in eocfe-
siastical and civil matters ; but because they
cannot so readily destroy themselves (the
law of nature having given to them a con-
trary internal principle of self-preservation)
as a tyrant who doth care for himself, and
not for the people. 3. And because Ex-
tremis morbis extrema remedia, in an ex-
traordinary exigent, when Ahab and Jeze-
i Barclaius contra Monarchum. lib. 5, c. 12, idem,
lib. 3, c. ult. p. 2, 3.
bel did undo the church of God, and tyran-
nise over both the bodies and consciences of
priest, prophet and people, Elijah procured
the convention of the states, and Elijah,
with the people's help, killed all Baal's
priests, the king looking on, without ques-
tion, against his heart. In this case I think
it is more than evident that the people re-
sumed their power. 4. We teach not that
people should supply all defects in govern-
ment, nor that they should use their power
when anything is done amiss by the king,
no more than the king is to cut off the whole
people of God when they refuse an idolatrous
service, obtruded upon them against all law.
The people are to suffer much before they
resume their power ; but this court slave will
have the people to do what he did not him-
self; for when king and parliament sum-
moned him, was he not obliged to appear ?
Non -compearance when lawrul, royal, and
parliamentary power summoneth, is no less
resistance than taking of ports and castles.
P. Prelate. — Then this superintending
power in people may call a king to account,
and punish him for any misdemeanour or
act of injustice. Why might not the people
of Israel's peers, or sanhedrim, have con-
vented David before them, judged and pun-
ished him tor his adultery with Bethsheba,
and his murder of Uriah. But it is held
by all that tyranny should he an intended
universal, total, manifest destruction of the
whole commonwealth, which cannot fall in
the thoughts of any but a madman. What
is recorded in the story of Nero's wish in
this kind, may be rather judged the expres-
sion of transported passion than a fixed reso-
lution.
Ans. — The P. Prelate, contrary to the
scope of his book, which is all for the subject
and seat of sovereign power, against all or-
der, hath plunged himself in the deep of
defensive arms, and yet hath no new thing.
1. Our law of Scotland will warrant any
subject, if the king take from him his heri-
tage, or invade his possession against law, to
resist the invaders, and to summon the king's
intruders before the lords of session for that
act of injustice. Is this against God's word,
or conscience ? 2. The Sanhedrim did not
punish David, therefore, it is not lawful to
challenge a king for any one act of injustice :
from the practice of the Sanhedrim to con-
clude a thing lawful or unlawful, is logic we
may resist. 3. By the P. Prelate's doctrine,
the law might not put Bathsheba to death,
THE LAW AND THE PRINCE.
37
nor yet .Toab, the nearest agent of the mur-
dering of innocent Uriah, because Bathshe-
ba's adultery was the king's adultery — she
did it in obedience to king David ; Joab's
murder was royal murder, as the murder of
all the cavaliers, for he had the king's hand-
writing for it. Murder is murder, and the
murderer is to die, though the king by a se-
cret let-alone, a private and illegal warrant,
command it; therefore the Sanhedrim might
have taken Bathsheba's life and Joab's head
also ; and, consequently, the parliament of
England, if they be judges, (as I conceive
God and the law of that ancient and re-
nowned kingdom maketh them,) may take
the head ot many Joabs and Jermines for
murder ; for the command of a king cannot
legitimate murder. 4. David himself, as
king, speaketh more for us than for the
Prelate, — 2 Sam. xii. 7, " And David's an-
ger was greatly kindled against the man,
(the man was himself, ver. 7, ' Thou art
the man,') and he said to Nathan, as the
Lord liveth, the man that hath done this
thing shall surely die." 5. Every act of
injustice doth not unking a prince before
God, as every act of uncleanness doth not
make a wife no wife before God. 6. The
Prelate excuseth Nero, and would not have
him resisted, if " all Borne were one neck
that he might cut it off with one stroke (I
read it of Caligula ; if the Prelate see more
in history than I do, I yield). 7- He saith.
the thoughts of total eversion of a kingdom
must only fall on a madman. The king of
Britain was not mad when he declared the
Scots traitors (because they resisted the ser-
vice of the mass) and raised an army of pre-
latical cut-throats to destroy them, if all the
kingdom should resist idolatry (as all are
obliged). The king slept upon this prela-
tical resolution many months : passions in
fervour have not a day's reign upon a man ;
and this was not so clear as the sun, but it
was as clear as written, printed proclama-
tions, and the pressing of soldiers, and the
visible marching of cut-throats, and the
blocking up of Scotland by sea and land,
could be visible to men having five senses.
Covarruvias, a great lawyer, saith,1 that
all civil power is penes remp. in the hands
of the commonwealth ; because nature hath
given to man to be a social creature, and
impossible he can preserve himself in a so-
ciety except he, being in community, trans-
1 Covarruvias. torn. 2, pract. quest, c. 1, n. 2-
form his power to an head. He saith : Hu-
jus vero eivilis societatis et resp. rector ab
alio quam ab ipsamet repub. constitui non
potest juste et absq. tyrannide. Siquidem
ab ipso Deo constitatus non est, nee clectus
euilibet civili societati immediate Rex aut
Princeps. Arist. (polit. 3, c. 10) saith, " It
is better that kings be got by election than
by birth; because kingdoms by succession
are vere regia, truly kingly : these by birth
are more tyrannical, masterly, and proper
to barbarous nations. And Covarruv. (torn.
2, pract. quest, de jurisd. Castellan. Beip. c.
1, n. 4,) saith, " Hereditary kings are also
made hereditary by the tacit consent of the
people, and so by law and consuetude."
Spalato saith, " Let us grant that a so-
ciety shall refuse to have a governor over
them, shall they be for that free? In no
sort. But there be many ways by which a
people may be compelled to admit a gover-
nor ; for then no man might rule over a
community against their will. But nature
hath otherwise disposed, ut quod singuli
nollent, universi vellent, that which every
one will not have, a community naturally
desireth." And the Prelate saith, " God is
no less the author of order than he is the
author of being ; for the Lord who createth
all conserveth all ; and without government
all human societies should be dissolved and
go to ruin : then government must be natu-
ral, and not depend upon a voluntary and
arbitrary constitution of men. In nature
the creatures inferior give a tacit consent
and silent obedience to their superior, and
the superior hath a powerful influence on
the inferior. In the subordination of crea-
tures we ascend from one superior to an-
other, till at last we come to one supreme,
which, by the way, pleadeth for the excel-
lency of monarchy. Amongst angels there
is an order ; how can it then be supposed
that God hath left it to the simple consent
of man to establish a heraldry of sub et su-
pra, of one above another, which neither
nature nor the gospel doth warrant? To
leave it thus arbitrary, that upon this sup-
posed principle mankind may be without
government at all, is vain ; which paradox
cannot be maintained. In nature God hath
established a superiority inherent in supe-
rior creatures, which is no ways derived from
the inferior by communication in what pro-
portion it will, and resumeable upon such
1 Spalato de rep. eccles. lib. G, c. 2, n. 32.
<3« LEX, REX ;
exigents as the inferior listeth ; therefore
neither hath God left to the multitude, the
community, the collective, the representa-
tive or virtual body, to derive from itself
and communicate sovereignty, whether in
one or few, or more, in what measure and
proportion pleaseth them, which they re-
sume at pleasure."
Ans. — To answer Spalato : No society
hath liberty to be without all government,
for " God hath given to every society," saith
Covai-ruvias, " a faculty of preserving them-
selves, and warding off violence and in-
juries; and this they could not do except
they gave their power to one or many ru-
lers."1 But all that the Prelate buildeth
on this false supposition, which is his fic-
tion and calumny, not our doctrine, to wit,
" that it is voluntary to man to be with-
out all government, because it is voluntary
to them to give away their power to one or
more rulers," is a mere non-consequence. 1.
We teach that government is natural, not
voluntary ; but the way and manner of go-
vernment is voluntary. All societies should
be quickly ruined if there were no govern-
ment ; but it followeth not, therefore, God
hath made some kings, and that immediate-
ly, without the intervening consent of the
people, and, therefore, it is not arbitrary to
the people to choose one supreme ruler, and
to erect a monarchy, or to choose more
rulers, and to erect an aristocracy. It fol-
loweth no way. It is natural to men to ex-
press their mind by human voices. Is not
speaking of this or that language, Greek ra-
ther than Latin, (as Aristotle saith,) *«™
auvHx.n* by human institution ? It is natural
for men to eat, therefore election of this or
that meat is not in their choice. What rea-
son is in this consequence ? And so it is a
poor consequence also, Power of sovereign-
ty is in the people naturally, therefore it is
not in their power to give it out in that
measure that pleaseth them, and to resume
it at pleasure. It followeth no way. Be-
cause the inherency of sovereignty is natural
and not arbitrary, therefore, the alienation
and giving out of the power to one, not to
three, thus much, not thus much, condition-
ally, not absolutely and irrevocably, must be
also arbitrary. It is as if you should say, a
father having six children, naturally loveth
them all, therefore he hath not freedom of
will in expressing his affection, to give so
1 Covarr. torn. 4, praet. qnest. c. 1, n. 2.
much of his goods to this son, and that con-
ditionally, if he use these goods well ; and
not more or less of his goods at his pleasure.
2. There is a natural subordination in na-
ture in creatures superior and inferior, with-
out any freedom of election. The earth
made not the heavens more excellent than
the earth, and the earth by no freedom of
will made the heavens superior in excellency
to itself. Man gave no superiority of excel-
lency to angels above himself. The Creator
of all beings did both immediately, without
freedom of election in the creature, create
the being of all the creatures, and their es-
sential degrees of superiority and inferiority,
but God created not Saul by nature king
over Israel ; nor is David by the act of cre-
ation by which he is made a man, created
also king over Israel ; for then David should
from the womb and by nature be a king,
and not by God's free gift. Here both the
free gift of God, and the free consent of the
people intervene. Indeed God made the of-
fice and royalty of a king above the dignity
of the people, but he, by the intervening-
consent of the people, maketh David a king,
not Eliab ; and the people maketh a cove-
nant at David's inauguration, that David
shall have so much power, to wit, power to
be a father, not power to be a tyrant, — power
to fight for the people, not power to waste
and destroy them. The inferior creatures
in nature give no power to the superior, and
therefore they cannot give in such a propor-
tion power. The denial of the positive de-
gree is a denial of the comparative and su-
perlative, and so they cannot resume any
power ; but the designing of these men or
those men to be kings or rulers is a rational,
voluntary action, not an action of nature, —
such as is God's act of creating an angel a
nobler creature than man, and the creating
of man a more excellent creature than a
beast ; and, for this cause, the argument is
vain and foolish ; for inferior creatures are
inferior to the more noble and superior by
nature, not by voluntary designation, or, as
royalists say, by naked approbation, which
yet must be an arbitrary and voluntary ac-
tion. 3. The P. Prelate commendeth order
while we come to the most supreme ; hence
he commendeth monarchy above all govern-
ments because it is God's government. I
am not ao-ainst it, that monarchy well-tem-
pered is the best government, though the
question to me is most problematic ; but be-
cause God is a monarch who cannot err or
THE LAW AND THE PRINCE.
39
deny himself, therefore that sinful man be a
monarch is miserable logic ; and he must ar-
gue solidly, forsooth, by "this, because there is
order, as he saith, amongst angels, will he
make a monarch and a king-angel ? His
argument, if it have any weight at all in it,
driveth at that, even that there be crowned
kings amongst the angels.
QUESTION X.
WHETHER OR NOT ROYAL BIRTH BE EQUIVA-
LENT TO DIVINE UNCTION.
Symmons holdeth that birth is as good a
title to the crown, as any given of God.
How this question can be cleared, I see not,
except we dispute that, Whether or not
kinodoms be proper patrimonies derived
from the father to the son. I take there
is a larcre difference betwixt a thing trans-
mitable by birth from the father to the son,
and a thing not transmitable. I conceive,
as a person is chosen to be a king over a
people, so a family or house may be chosen ;
and a kingdom at first choosing a person to
be their king, may also tie themselves to
choose the first-born of his body, but as they
transfer their power to the father, for their
own safety and peace, (not if he use the
power they give him to their destruction,)
the same way they tie themselves to his
first-born, as to their king. As they choose
the father not as a man, but a man gifted
with royal grace and a princely faculty for
government, so they can but tie themselves
to his first-born, as to one graced with a
faculty of governing; and if his first-born
shall be born an idiot and a fool, they are
not obliged to make him king ; for the ob-
ligation to the son can be no greater than
the obligation to the father, which first obli-
gation is the ground, measure, and cause, of
all posterior obligations. If tutors be ap-
pointed to govern such an one, the tutors
have the royal power, not the idiot ; nor
can he govern others who cannot govern
himself. That kings go not as heritage
from the father to the son, I prove,
1. God (Deut. xvii.) could not command
them to choose such an one for the king, and
such an one who, sitting on his throne, shall
i Edward Symmons, in his Loyal Subjects Be-
leefe, sect. 3, p. 16.
follow the direction of God, speaking in his
word, if birth were that which gave him
God's title and right to the crown ; for that
were as much as such a man should be heir
to his father's inheritance, and the son not
heir to his father's crown, except he were
such a man. But God, in all the law moral
or judicial, never required the heir should be
thus and thus qualified, else he should not be
heir; but he requireth that a man, and so
that a family, should be thus and thus quali-
fied, else they should not be kings. And I
confirm it thus : — The first king of divine
institution must be the rule, pattern, and
measure, of all the rest of the kings, as
Christ maketh the first marriage (Matt. xix.
8,) a pattern to all others ; and Paul reduc-
eth the right administration of the Supper
to Christ's first institution, 1 Cor. xi. 23.
Now, the first king (Deut. xvii. 14, 15)
is not a man qualified by naked birth, for
then the Lord, in describing the manner of
the king and his due qualifications, should
seek no other but this, You shall choose only
the first-born, or the lawful son of the for-
mer king. But seeing the king of God's
first moulding is a king by election, and
what God did after, by promises and free
grace, give to David and his seed, even a
throne till the Messiah should come, and did
promise to some kings, if they would walk
in his commandments, that their sons, and
sons' sons, should sit upon the throne, in my
judgment, is not an obliging law that sole
birth should be as just a title, in foro Dei,
(for now I dispute the question in point of
conscience,) as royal unction.
2. If, by divine institution, God hath im-
pawned in the people's hand a subordinate
power to the Most High, who giveth king-
doms to whom he will, to make and create
kings, then is not sole birth a just title to
the crown. But the former is true. By pre-
cept (Deut. xvii. 15) God expressly saith,
" Thou shalt choose him king, whom the
Lord shall choose." And if it had not been
the people's power to create their own kings,
how doth God, after he had designed Saul
their king, yet expressly (1 Sam. x.) inspire
Samuel to call the people before the Lord
at Mizpeh to make Saul king ? And how
doth the Lord (ver. 22) expressly shew to
Samuel and the people, the man that they
might make him king? And because all
consented not that Saul should be king, God
will have his coronation renewed, Ver. 14,
" Then said Samuel to the people, come and
40
LEX, REX
let us go to Gilgal, and renew the kingdom
there ;" ver. 15, " And all the people went
to Gilgal, and there they made Saul king
before the Lord in Gilgal." And how is it
that David, anointed by God, is yet no king,
but a private subject, while all Israel make
him king at Hebron ?
3. If royal birth be equivalent to royal
unction and the best title ; if birth speak and
declare to us the Lord's will and appoint-
ment, that the first-born of a king should be
king, as M. Symmons and others say, then
is all title by conquest, where the former
king standeth in title to the crown and hath
an heir, unlawful. But the latter is against
all the nation of the royalists, for Arnisseus,
Barclay, Grotius, Jo. Rossensis Episco., the
Bishop of Spalato, Dr Feme, M. Symmons,
the excommunicate Prelate, if his poor learn-
ing may bring him in the roll, teach that
conquest is a lawful title to a crown. I
prove the proposition, (1.) because if birth
speak God's revealed will, that the heir of a
king is the lawful king, then conquest can-
not speak contrary to the will of God, that
he is no lawful king, but the conqueror is
the lawful king. God's revealed will should
be contradictory to himself, and birth should
speak, it is God's will that the heir of the
former king be king, and the conquest being
also God's revealed will, should also speak
that that heir should not be king. (2.) If
birth speak and reveal God's will that the
heir be king, it is unlawful for a conquered
people to give their consent that a conque-
ror be their king ; for their consent being-
contrary to God's revealed will, (which is,
that birth is the just title,) must be an un-
lawful consent. If royalists say, God, the
King of kings, who immediately maketh
kings, may and doth transfer kingdoms to
whom he will; and when he putteth the
sword in Nebuchadnezzar's hand to con-
quer the king and kingdom of Judah, then
Zedekiah or his son is not king of Judah,
but Nebuchadnezzar is king, and God, be-
ing above his law, speaketh in that case his
will by conquests, as before he spake his
will by birth. This is all can be said. Ans.
They answer black treason in saying so, for
if Jeremiah, from the Lord, had not com-
manded expressly, that both the king and
kingdom of Judah should submit to the king
of Babylon, and serve him, and pray for
him, as their lawful king, it had been as
lawful for them to rebel against that tyrant,
as it was for them to ni>ht against the Phi-
listines and the king of Ammon ; but if birth
be the just and lawful title, in foro Dei,
in God's court, and the only thing that evi-
denceth God's will, without any election of
the people, that the first-born of such a
king is their lawful king, then conquests can-
not now speak a contradictory will of God ;
for the question is not, whether or not God
giveth power to tyrants to conquer kingdoms
from the just heirs of kings, which did reign
lawfully before their sword made an empty
throne, but whether conquest now, when
Jeremiahs are not sent immediately from
God to command, for example, Britain to
submit to a violent intruder, who hath ex-
pelled the lawful heirs of the royal line of
the king of Britain, whether, I say, doth
conquest, in a such a violent way, speak that
it is God's revealed will, called Voluntas
signi, the will that is to rule us in all our
moral duties, to cast off the just heirs of
the blood royal, and to swear homage to a
conqueror, and so as that conqueror now
hath as just right as the king of Britain
had by birth. This cannot be taken off by
the wit of any who maintain that conquest
is a lawful title to a crown, and that royal
birth, without the people's election, speaketh
God's regulating will in his word, that the
first-born of a king is a lawful king by birth,
for God now-a-days doth not say the con-
trary of what he revealed in his word. If
birth be God's regulating will, that the heir
of the king is in God's court a king, no act
of the conqueror can annul that word of
God to us, and the people may not lawfully,
though they were ten times subdued, swear
homage and allegiance to a conqueror against
the due right of birth, which by royalists'
doctrine revealeth to us the plain contradic-
tory will of God. It is, I grant, often God's
decree revealed by the event, that a conque-
ror be on the throne, but this will is not our
rule, and the people are to swear no oath of
allegiance contrary to God's Voluntas signi,
which is his revealed will in his word regu-
lating us.
4. Things transferable and communicable
by birth from father to son, are only, in
law, those which heathens call bona fortunes
riches, as lands, houses, monies and heri-
tages ; and so saith the law also. These
things which essentially include gifts of the
mind, and honour properly so called — I
mean honour founded on virtue — as Aris-
totle, with good reason, maketh honour -prce-
minum virtutis, cannot be communicated by
THE LAW AND THE PRINCE.
birth from the father to the son ; for royal
dignity includeth these three constituent
parts essentially, of which none can be com-
municable by birth. (1.) The royal faculty
of governing, which is a special gift of God
above nature, is from God. Solomon asked
it from God, and had it not by generation
from his father David. (2.) The royal hon-
our to be set above the people because of
this royal virtue is not from the womb, for
then God's Spirit would not have said,
" Blessed art thou, O land, when thy king-
is the son of nobles," Eccl. x. 17 ; this hon-
our, springing from virtue, is not born with
any man, nor is any man born with either
the gift or honour to be a judge. God
maketh high and low, not birth. Nobles are
born to great estates. If judging be heri-
tage to any, it is a municipal positive law.
I now speak in point of conscience. (3.) The
external lawful title, before men come to a
crown, must be God's will, revealed by such
an external sign as, by God's appointment
and warrant, is to regulate our will ; but ac-
cording to Scripture, nothing regulateth our
will, and leadeth the people now that they
cannot err following God's rule in making a
king, but the free suffrages of the states
choosing a man whom they conceive God
hath endued with these royal gifts required
in the king whom God holdeth forth to them
in his word, (Deut. xvii.) Now thei'e be but
these to regulate the people, or to be a rule
to any man to ascend lawfully, in foro Dei,
in God's court to the throne. (1.) God's
immediate designation of a man by prophe-
tical and divinely-inspired unction, as Sa-
muel anointed Saul and David ; this we are
not to expect now, nor can royalists say it.
(2.) Conquest, seeing it is an act of violence,
and God's revenging justice for the sins of
a people, cannot give in God's court such a
just title to the throne as the people are to
submit their consciences unto, except God
reveal his regulating will by some immediate
voice from heaven, as he commanded Judah
to submit to Nebuchadnezzar as to their
king by the mouth of Jeremiah. Now this
is not a rule to us ; for then, if the Spanish
king should invade this land, and, as Nebu-
chadnezzar did, deface the temple, and in-
struments and means of God's worship, and
abolish the true worship of God, it should
be unlawful to resist him, after he had once
conquered the land : neither God's word, nor
the law of nature could permit this. I sup-
pose, even by grant of adversaries, now no
act of violence done to a people, though in
God's court they have deserved it, can be a
testimony to us of God's regulating will ; ex-
cept it have some warrant from the law and
testimony, it is no rule to our conscience to
acknowledge him a lawful magistrate, whose
sole law to the throne is an act of the bloody
instrument of divine wrath, I mean the
sword. That, therefore, Judah was to sub-
mit, according to God's word, to Nebuchad-
nezzar, whose conscience and best warranted
calling to the kingdom of Judah was his
bloody sword, even if we suppose Jeremiah
had not commanded them to submit to the
king of Babylon, I think cannot be said.
(3) Naked birth cannot be this external
signification of God's regulating will to war-
rant the conscience of any to ascend to the
throne, for the authors of this opinion make
royal birth equivalent to divine unction ; for
David anointed by Samuel, and so anointed
by God, is not king, — Saul remained the
Lord's anointed many years, not David, al-
though anointed by God ; the people's mak-
ing him king at Hebron, founded upon di-
vine unction, was not the only external law-
ful calling that we read of that David had
to the throne ; then royal birth, because it is
but equivalent only to divine unction, not
superior to divine unction, it cannot have
more force to make a king than divine unc^-
tion. And if birth was equivalent to divine
unction, what needed Joash, who had royal
birth, be made king by the people? and
what needed Saul and David, who had
more than royal birth, even divine unc-
tion, be made kings by the people? and
Saul, having the vocal and infallible testi-
mony of a prophet, needed not the people's
election — the one at Mizpeh and Gilgal,
and the other at Hebron.
5. If royal birth be as just a title to the
crown as divine unction, and so as the peo-
ple's election is no title at all, then is it un-
lawful that there should be a king by elec-
tion in the world now ; but the latter is
absurd, — so is the former. I prove the
proposition, because where conquerors are
wanting, and there is no king for the pre-
sent, but the people governing, and so much
confusion aboundeth, they cannot lawfully
appoint a king, for his lawful title before
God must either be conquest — which to me
is no title — (and here, and in this case, there
is no conquest) or the title must be a pro-
phetical word immediately inspired of God,
but this is now ceased ; or the title must be
TT
42
LEX, REX ; OR,
royal birth, but here there is no royal birth,
because the government is popular ; except
you imagine that the society is obliged in
conscience to go and seek the son of a fo-
reign king to be their king. But I hope
that such a royal birth should not be a just
title before God to make him king of that
society to which he had no relation at all,
but is a mere stranger. Hence in this case
no title could be given to any man to make
him king, but only the people's election,
which is that which we say. And it is most
unreasonable that a people under popular
government cannot lawfully choose a king to
themselves, seeing a king is a lawful magis-
trate, and warranted by God's word, be-
cause they have not a king of royal birth to
sit upon the throne.
Mr Symmons saith1 that birth is the best
title to the crown, because after the first of
the family had been anointed unction was
no more used in that family, (unless there
arose a strife about the kingdom, as betwixt
Solomon and Adonijah, Joash and Athaliah)
the eldest son of the predecessor was after-
ward the chosen of the Lord, his birthright
spake the Lord's appointment as plainly as
his father's unction. — Ans. 1. It is a con-
jecture that unction was not used in the fa-
mily, after the first unction, except the con-
test was betwixt two brethren : that is said,
not proved ; for 2 Kings xxiii. 30, when
good Josiah was killed, and there was no
contest concerning the throne of that be-
loved prince, the people of the land took Je-
hoahaz his son, and anointed him, and made
him king in his father's stead ; and the
priests were anointed, (Lev. vi. 22,) yea, all
the priests were anointed, (Numb. iii. 3,)
yet read we not in the history, where this
or that man was anointed. 2. In that
Adonijah, Solomon's elder brother, was not
king, it is clear that God's anointing and
the people's electing made the right to the
crown, and not birth. 3. Birth de facto
did design the man, because of God's special
promises to David's house ; but how doth a
typical descent made to David, and some
others by God's promise, prove, that birth
is the birthright and lawful call of God to
a crown in all after ages ? For as gifts to
reign goeth not by birth, so neither doth
God's title to a crown go.
M. Symmons. — A prince once possessed
of a kingdom coming to him by inheritance,
i Symmons' Loyal Subjects Beleefe, sect. 3, p. 16.
can never, by any, upon any occasion be dis-
possessed thereof, without horrible impiety
and injustice. Royal unction was an inde-
lible character of old : Saul remained the
Lord's anointed till the last gasp. David
durst not take the right of government ac-
tually unto him, although he had it in re-
version, being already anointed thereunto,
and had received the spirit thereof.
Ans. — 1. This is the question, If a prince,
once a prince by inheritance, cannot be dis-
possessed thereof without injustice : for if a
kingdom be his by birth, as an inheritance
transmitted from the father to the son, I
see not but any man upon necessary occa-
sions may sell his inheritance ; but if a
prince sell his kingdom, a very Barclay and
a Grotius with reason will say, he may be
dispossessed and dethroned, and take up his
indelible character then. (2.) A kingdom
is not the prince's own, so as it is injustice to
take it from him, as to take a man's purse
from him ; the Lord's church, in a Christian
kingdom, is God's heritage, and the king
only a shepherd, and the sheep, in the court
of conscience, are not his. (3.) Royal unc-
tion is not an indelible character ; for nei-
ther Saul nor David were all their days
kings thereby, but lived many days private
men after divine unction, while the people
anointed them kings, except you say that
there were two kings at once in Israel ; and
that Saul, killing David, should have killed
his own lord, and his anointed. (4.) If Da-
vid durst not take the right of government
actually on him, then divine unction made
him not king, but only designed him to be
king : the people's election must make the
king.
M. Symmons addeth, " He that is born
a king and a prince can never be unborn,
Semel Augustus semper Augustus; yea, I
believe the eldest son of such a king is, in
respect of birth, the Lord's anointed in his
father's life-time, — even as David was be-
fore Saul's death, and to deprive him of his
right of reversion is as true injustice as to
dispossess him of it."
Ans. — It is proper only to Jesus Christ
to be born a king. Sure I am no man
bringeth out of the womb with him a scep-
tre, and a crown on his head. Divine unc-
tion giveth a right infallibly to a crown, but
birth doth not so ; for one may be born heir
to a crown, as was hopeful prince Henry,
1 Symmons, sect. 3, p. 7.
THE LAW AND THE PRINCE.
43
and yet never live to be king. The eldest
son of a king, if he attempt to kill his father,
as Absalom did, and raise forces against the
lawful prince, I conceive he may be killed in
battle without any injustice. If in his fa-
ther's time he be the Lord's anointed, there
be two kings ; and the heir may have a son,
and so there shall be three kings, possibly
four, — all kings by divine right.
The Prelate of Rochester saith,1 " The
people and nobles give no right to him who
is born a king, they only declare his right."
Ans. — This is said, not proved. A man
born for an inheritance is by birth an heir,
because he is not born for these lands as a
mean for the end, but by the contrary, these
lands are for the heir as the mean for the
end ; but the king is for his kingdom as a
mean for the end, as the watchman for the
city, the living law for peace and safety to
God's people ; and, therefore, is not heres
hominum, an heir of men, but men are ra-
ther heredes regis, heirs of the king.
Arnisseus saith,2 " Many kingdoms are
purchased by just war, and transmitted by
the law of heritage from the father to the
son, beside the consent of the people, because
the son receiveth right to the crown not
from the people, but from his parents ; nor
doth he possess the kingdom as the patri-
mony of the people, keeping only to himself
the burden of protecting and governing the
people, but as a propriety given to him lege
regni, by his parents, which he is obliged to
defend and rule, as a father looketh to the
good and welfare of the family, yet so also
as he may look to his own good.
Ans. — We read in the word of God that
the people made Solomon king, not that
David, or any king, can leave in his testa-
ment a kingdom to his son. He saith, the
son hath not the right of reigning as the
patrimony of the people, but as a propriety,
given by the law of the kingdom by his pa-
rents. Now this is all one as if he said the
son hath not the right of the kingdom as
the patrimony of the people, but as the pa-
trimony of the people — which is good non-
sense ; for the propriety of reigning given
from father to son by the law of the king-
dom, is nothing but a right to reign given
by the law of the people, and the very gift
and patrimony of the people ; for lex regni,
this law of the kingdom is the law of the
1 Joan. Episco. Roffens. de potest. Fapa?. lib. 2, c. 5.
2 Arnisaeus de authoiit. princip. c. 1, n. 13.
people, tying the crown to such a royal fa-
mily ; and this law of the people is prior
and more ancient than the king, or the
right of reigning in the king, or which the
king is supposed to have from his royal fa-
ther, because it made the first father the
first king of the royal line. For I demand,
how doth the son succeed to his father's
crown and throne ? Not by any promise of
a divine covenant that the Lord . maketh to
the father, as he promised that David's seed
should sit on his throne till the Messiah
should come. This, as I conceive, is van-
ished with the commonwealth of the Jews ;
nor can we now find any immediate divine
constitution, tying the crown now to such a
race, — nor can we say this cometh from the
will of the father-king making his son king.
For, 1. There is no Scripture can warrant
us to say the king maketh a king, but the
Scripture holdeth forth that the people
made Saul and David kings. 2. This may
prove that the father is some way a cause
why this son succeedeth king ; but he is not
the cause of the royalty conferred upon the
whole line, because the question is, Who
made the first father a king ? Not himself ;
nor doth God now immediately by prophets
anoint men to be kings, — then must the
people choose the first man, then must the
people's election of a king be prior and more
ancient than the birth-law to a crown ; and
election must be a better right than birth.
The question is, Whence cometh it that not
only the first father should be chosen king ;
but also whence is it, that whereas it is in
the people's free will to make the succession
of kings go by free election, as it is in Den-
mark and Poland, yet the people doth freely
choose, not only the first man to be king,
but also the whole race of the first-born of
this man's family to be Icings. All here
must be resolved in the free will of the com-
munity. Now, since we have no immediate
and prophetical enthroning of men, it is evi-
dent that the lineal deduction of the crown
from father to son, through the whole line,
is from the people, not from the parent.
6. Hence, I add this as my sixth argu-
ment, That which taketh away that natural
aptitude and nature's birthright in a com-
munity, given to them by God and nature,
to provide the most efficacious and prevalent
mean for their own preservation and peace
in the fittest government, that is not to be
holden ; but to make birth the best title to
the crown, and better than free election,
LL'X, REX ; OK,
taketh away and imped eth that natural ap-
titude and nature's birthright of choosing,
not simply a governor, but the best, the
justest, the more righteous, and tyeth and
i'ettereth their choice to one of a house,
whether he be a wise man, and just, or a
fool and an unjust man ; therefore to make
birth the best title to the crown, is not to be
holden.
It is objected, That parents may bind their
after generations to choose one of such a line,
but by this argument, their natural birth-
right of a free choice to elect the best and
fittest, is abridged and clipped, and so the
posterity shall not be tyed to a king of the
royal line to which the ancestors did swear.
See for this the learned author of " Scrip-
ture and Reasons pleaded for Defensive
Arms."
Ans. — Frequent elections of a king, at
the death of every prince, may have, by ac-
cident, and through the corruption of our
nature, bloody and tragical sequels ; and to
eschew these, people may tie and oblige their
children to choose one of the first-born,
male or female, as in Scotland and England,
of such a line ; but I have spoken of the ex-
cellency of the title by election above that
of birth, as comparing things according to
their own nature together, but give me
leave to say, that the posterity are tied to
that line,— 1. Conditionally : so the first-
born, ceteris paribus, be qualified, and have
an head to sit at the helm. 2. Elections of
governors would be performed as in the sight
of God, and, in my weak apprehension, the
person coming nearest to God's judge, fear-
ing God, hating covetousness ; and to Mo-
ses' king, (Deut. xvii.) one who shall read in
the book of the law ; and it would seem now
that gracious morals are to us instead. of
God's immediate designation. 3. The gen-
uine and intrinsical end of making kings
is not simply governing, but governing the
best way, in peace, honesty, and godliness,
(1 Tim.ii.) therefore, these are to be made
kings who may most expeditely procure this
end. Neither is it my purpose to make him
no king who is not a gracious man, only here
I compare title with title.
Arg. 7. Where God hath not bound the
conscience, men may not bind themselves, or
the consciences of the posterity. But God
hath not bound any nation irrevocably and
unalterably to a royal line, or to one kind of
1 Sect. 4, p. 39.
government ; therefore, no nation can bind
their conscience, and the conscience of the
posterity, either to one royal line, or irrevo-
cably and unalterably to monarchy. The
proposition is clear. 1. No nation is tyed,
jure divino, by the tie of a divine law, to a
monarchy, rather than to another govern-
ment. The Parisian doctors prove, that the
precept of having a pope is affirmative, and
so tyeth not the church, ad semper, for ever;
and so the church is the body of Christ,
without the Pope : and all oaths to things
of their nature indifferent, and to things the
contrary whereof is lawful and may be ex-
pedient and necessary, lay on a tie only con-
ditionally, in so far as they conduce to the
end. If the Gibeonites had risen in Jo-
shua's days to cut off the people of God, I
think no wise man can think that Joshua
and the people were tyed, by the oath of
God, not to cut off the Gibeonites in that
case ; for to preserve them alive, as ene-
mies, was against the intent of the oath,
which was to preserve them alive, as friends
demanding and supplicating peace, and sub-
mitting. The assumption is clear. If a na-
tion seeth that aristocratical government is
better than monarchy, hie et nunc, that the
sequels of such a monarchy is bloody, destruc-
tive, tyrannous ; that the monarchy compel-
leth the free subjects to Mahomedanism, to
gross idolatry, they cannot, by the divine
bond of any oath, captive their natural free-
dom, which is to choose a government and
governors for their safety, and for a peace-
able and godly life ; or fetter and chain the
wisdom of the posterity unalterably to a
government or a royal line, which, hie et
nunc, contrary to the intention of their oath,
proveth destructive and bloody. And in this
case, even the king, though tyed by an oath
to govern, is obliged to the practices of the
Emperor Otho ; and as Speed saith of Rich-
ard the second,1 to resign the crown for the
eschewing of the effusion of blood. And who
doubteth but the second wits of the expe-
rienced posterity may correct the first wits
of their fathers ; nor shall I ever believe
that the fathers can leave in legacy by oath,
any chains of the best gold to fetter the af-
ter wits of posterity, to a choice destructive
to peace and true godliness.
Arg. 8. An heritor may defraud his first-
born of his heritage, because of his dominion
ho hath over his heritage: a king cannot de-
1 Speed, Hist. p. 757.
THE LAW AND THE PRINCE.
45
fraud his first-born of the crown. An heritor
may divide his heritage equally amongst his
twelve sons : a king cannot divide his royal
dominions in twelve parts, and give a part to
every son ; for so he might turn a monarchy
into an aristocracy, and put twelve men in
the place of one king. Any heritor taken
captive may lawfully oppignerate, yea, and
give all his inheritance as a ransom for his
liberty ; for a man is better than his inheri-
tance : but no king may give his subjects as
a price or ransom.
Yet I shall not be against the succession
of kings by birth with good limitations ; and
shall agree, that through the corruption of
man's nature, it may be in so far profitable,
as it is peaceable, and preventeth bloody tu-
mults, which are the bane of human socie-
ties. Consider further for this, iEgid. Ro-
manus, lib. 3. de reg. princi. cap. 5, Turrec*
re mat. and Joan, de terrse Reubese, 1 tract,
contr. Rebelles, ar. 1, con. 4. Yet Aristo-
tle, the flower of nature's wit, (lib. 3. polit.
c. 10,) preferreth election to succession. He
preferreth Carthage to Sparta, though their
kings came of Hercules. Plutarch in Scylla,
saith, he would have kings as dogs, that is,
best hunters, not those who are born of best
dogs. Tacitus, lib. 1, Naci et generari a
Principibus, fortuitum, nee ultra ccstiman-
tur.
QUESTION XL
WHETHER OR NO HE BE MORE PRINCIPALLY A
KING WHO IS A KING BY BIRTH, OR HE
WHO IS A KING BY THE FREE ELECTION
AND SUFFRAGES OF THE PEOPLE.
Assert. 1. — Without detaining the reader,
I desire liberty to assert that, where God es-
tablished a kingdom by birth, that govern-
ment, hie et nunc, is best ; and because God
principally distributeth crowns, when God es-
tablisheth the royal line of David to reign,
he is not principally a king who cometh near-
est and most immediately to the fountain of
royalty, which is God's immediate will ; but
God established, hie et nunc, for typical rea-
sons (with reverence of the learned) a king
by birth.
Assert. 2. — But to speak of them, ex ncc-
tur a rei, and according to the first mould
and pattern of a king by law, a king by elec-
• i tion is more principally king ( magis univoce
et per se) than an hereditary prince. (1.)
Because in hereditary crowns, the first fami-
ly being chosen by the free suffrages of the
people, for that cause ultimate, the heredi-
tary prince cometh to the throne, because
his first father, and in him the whole line
of the family, was chosen to the crown, and
propter quod unumquodque tale, id ipsum
magis tale. (2.) The first king ordained
by God's positive law, must be the measure
of all kings, and more principally the king
than he who is such by derivation. But the
first king is a king by election, not by birth,
Deut. xvii. 15, Thou shalt in any wise set
him king over thee, whom the Lord thy
God shall choose ; one from amongst thy
brethren shalt thou set over thee. (3.) The
law saith, Surrogatum fruitur privilegiis
ejus, in cujus locum surrogatur, he who
is substituted in the place of another, enjoy-
eth the privileges of him in whose place he
succeedeth. But the hereditary king hath
royal privileges from him who is chosen king.
Solomon hath the royal privileges of David
his father, and is therefore king by birth,
because his father David was king by elec-
tion ; and this I say, not because I think sole
birth is a just title to the crown, but because
it designeth him who indeed virtually was
chosen, when the first king of the race was
chosen. (4.) Because there is no dominion of
either royalty, or any other way by nature,
no more than an eagle is born king of eagles,
a lion king of lions ; neither is a man by na-
ture born king of men ; and, therefore, he
who is made king by suffrages of the peo-
ple, must be more principally king than
he who hath no title but the womb of his
mother.
Dr Feme is so far with us, to father roy-
alty upon the people's free election as on
the formal cause, that he saith, If to design
the person and to procure limitation of the
power, in the exercise of it, be to give the
power, we grant the power is from the peo-
ple ; but (saith he) you will have the power
originally from themselves, in another sense,
for you say, they reserve power to depose
and displace the magistrate ; sometimes they
make the monarchy supreme, and then they
divest themselves of all power, and keep
none to themselves; but, before establish-
ed government, they have no politic power
whereby they may lay a command on others,
but only a natural power of private resist-
i Dr Fern, part 3, sect. 3, p. 14.
46
LEX, REX ; OR,
ance, which they cannot use against the ma-
gistrate.
Ans. — But to take off those by the way.
1. If the king may choose A. B. an ambas-
sador, and limit him in his power, and say,
Do this, and say this to the foreign state you
go to, but no more, half a wit will say the
king createth the ambassador, and the am-
bassador's power is originally from the king ;
and we prove the power of the lion is origi-
nally from God, and of the sea and the fire is
originally from God, because God limiteth
the lion in the exercises of its power, that
it shall not devour Daniel, and limiteth the
sea, as Jeremiah saith, when as he will have
its proud waves to come thither and no far-
ther, and will have the fire to burn those
who threw the three children into the fiery
furnace, and yet not to burn the three chil-
dren ; for this is as if Dr Feme said, The
power of the king of six degrees, rather than
his power of five, is from the people, there-
fore the power of the king is not from the
people ; yea, the contrary is true. 2. That
the people can make a king supreme, that is,
absolute, and so resign nature's birthright,
that is, a power to defend themselves, is not
lawful, for if the people have not absolute
power to destroy themselves, they cannot
resign such a power to their prince. 3. It
is false that a community, before they be es-
tablished with formal rulers, have no politic
power ; for consider them as men only, and
not as associated, they have indeed no politic
power: but before magistrates be established,
they may convene and associate themselves
in a body, and appoint magistrates; and this
they cannot do if they had no politic power
at all. 4. They have virtually a power to
lay on commandments, in that they have
power to appoint to themselves rulers, who
may lay commandments on others. 5. A
community hath not formally power to pun-
ish themselves, for to punish, is to inflict ma-
lum disconveniens naturae, an evil contrary
to nature ; but, in appointing rulers and
in agreeing to laws, they consent they shall
be punished by another, upon supposition of
transgression, as the child willingly going to
school submitteth himself in that to school
discipline, if he shall fail against any school
law ; and by all this it is clear, a king by
election is principally a king. Barclay then
faileth, who saith,1 No man denieth but suc-
cession to a crown by birth is agreeable to
i Barcla. cont. Monarcham. c. 2, p. 56.
nature. It is not against nature, but it is no
more natural than for a lion to be born a
king of lions.
Obj. — Most of the best divines approve an
hereditary monarch, rather than a monarch
by election.
Ans. — So do I in some cases. In re-
spect of empire simply, it is not better ; in
respect of empire now, under man's fall
in sin, I grant it to be better in some re-
spects. So Salust in Jugurth. Natura
mortalium imperij avida. Tacitus, Hist.
2. Minore discrimine princeps sumitur,
quam queritu, there is less danger to ac-
cept of a prince at hand, than to seek one
afar off. In a kingdom to be constituted,
election is better; in a constituted kingdom,
birth seemeth less evil. In respect of liberty,
election is more convenient ; in respect of
safety and peace, birth is safer and the near-
est way to the well. See Bodin. de Rep.
lib. 6, c. iv. ; Thol. de Rep. lib. 7, c iv.
QUESTION XII.
WHETHER OR NOT A KINGDOM MAY LAWFUL-
LY BE PURCHASED BY THE SOLE TITLE 01?
CONQUEST.
The Prelate averreth confidently (c. 17,
p. 58) that a title to a kingdom by conquest,
without the consent of a people, is so just and
evident by Scripture, that it cannot be denied ;
but the man bringeth no Scripture to prove
it. Mr Marshall saith, (Let. p. 7,) a con-
quered kingdom is but continuata injuria,
a continued robbery. A right of conquest
is twofold. 1. When there is no just cause.
2. When there is just reason and ground of
the war. In this latter case, if a prince
subdue a whole land which justly deserveth
to die, yet, by his grace, who is so mild a
conqueror, they may be all preserved alive ;
now, amongst those who have thus injured
the conqueror, as they deserve death, we are
to difference the persons offending, and the
wives, children — especially those not bora —
and such as have not offended. The former
sort may resign their personal liberty to the
conqueror, that the sweet life may be saved.
He cannot be their king properly ; but I con-
ceive that they are obliged to consent that
he be their king, upon this condition, that
the conqueror put not upon them violent and
tyrannical conditions that are harder than
THE LAW AND THE PRINCE.
47
death. Now, in reason, we cannot think
that a tyrannous and unjust domineering can
be God's lawful mean of translating king-
doms ; and, for the other part, the conqueror
cannot domineer as king over the innocent,
and especially the children not yet born.
Assert. 1. — A people may be, by God's
special commandment, subject to a conquer-
ing Nebuchadnezzar and a Caesar, as to their
king, as was Judah commanded by the pro-
phet Jeremiah to submit unto the yoke of
the king of Babylon, and to pray for him,
and the people of the Jews were to give to
Caesar the things of Caesar ; and yet both
those were unjust conquerors : for those ty-
rants had no command of God to oppress
and reign over the Lord's people, yet were
they to obey those kings, so the passive sub-
jection was just and commanded of God,
and the active, unjust and tyrannous, and
forbidden of God.
Assert. 2. — This title by conquest, through
the people's after consent, may be turned
into a just title, as in the case of the Jews
in Caesar's time, for which cause our Saviour
commanded to obey Csesar, and to pay tri-
bute unto him, as Dr Feme confesseth, (sec.
vii. p. 30). But two things are to be con-
demned in the Doctor. 1. That God mani-
fested his will to us in this work of provi-
dence, whereby he translateth kingdoms.
2. That this is an over-awed consent. Now
to the former I reply, — 1 . If the act of con-
quering be violent and unjust, it is no mani-
festation of God's regulating and approving
will, and can no more prove a just title to a
crown, because it is an act of divine provi-
dence, than Pilate and Herod's crucifying
of the Lord of glory, which was an act of
divine providence, flowing from the will and
decree of divine providence, (Acts ii. 23 ;
iv. 28,) is a manifestation that it was God's
approving will, that they should kill Jesus
Christ. 2. Though the consent be some
way over-awed, yet is it a sort of contract
and covenant of loyal subjection made to the
conqueror, and therefore sufficient to make
the title just ; otherwise, if the people never
give their consent, the conqueror, domineer-
ing over them by violence, hath no just title
to the crown.
Assert. 3. — Mere conquest by the sword,
without the consent of the people, is no just
title to the crown.
Arg. 1. — Because the lawful title that
God's word holdeth forth to us, beside the
Lord's choosing and calling of a man to the
crown, isthepeope's election, Deut. xvii. 15,
all that had any lawful calling to the crown
in God's word, as Saul, David, Solomon, &c,
were called by the people ; and the first law-
ful calling is to us a rule and pattern to all
lawful callings.
Arg. 2. — A king, as a king, and by virtue
of his royal office, is the father of the king-
dom, a tutor, a defender, protector, a shield,
a leader, a shepherd, a husband, a patron, a
watchman, a keeper of the people over which
he is king, and so the office essentially in-
cludeth acts of fatherly affection, care, love
and kindness, to those over whom he is set,
so as he who is clothed with all these rela-
tions of love to the people, cannot exercise
those official acts on a people against their
will, and by mere violence. Can he be a
father, a guide and a patron to us against
our will, and by the sole power of the bloody
sword ? A benefit conferred on any against
their will is no benefit. Will he by the
awesome dominion of the sword be our fa-
ther, and we unwilling to be his sons — an
head over such as will not be members?
Will he guide me as a father, a husband,
against my will ? He cannot come by mere
violence to be a patron, a shield, and a de-
fender of me through violence.
* Arg. 3. — It is not to be thought that
that is God's just title to a crown which
hath nothing in it of the essence of a king,
but a violent and bloody purchase, which is
in its prevalency in an oppressing Nimrod,
and the crudest tyrant that is hath nothing-
essential to that which constituteth a king ;
for it hath nothing of heroic and royal wis-
dom and gifts to govern, and nothing of
God's approving and regulating will, which
must be manifested to any who would be a
king, but by the contrary, cruelty hath ra-
ther baseness and witless fury, and a plain
reluctancy with God's revealed will, which
forbiddeth murder. God's law should say,
" Murder thou, and prosper and reign ;"
and by the act of violating the sixth com-
mandment, God should declare his approv-
ing will, to wit, his lawful call to a throne.
Arg. 4. — There be none under a law of
God who may resist a lawful call to a lawful
office, but men may resist any impulsion of
God stirring them up to murder the most
numerous and strongest, and chief men of a
kingdom, that they may reign over the few-
est, the weakest, and the young, and lowest
of the people, against their will ; therefore
this call by the sword is not lawful. If it
48
LEX, REX ; OR,
be said that the divine impulsion, stirring up
a man to make a bloody conquest, that the
ire and just indignation of God in justice
may be declared on a wicked nation, is an
extraoi'dinary impulsion of God, who is above
a law, and therefore no man may resist it ;
then all bloody conquerors must have some
extraordinary revelation from heaven to war-
rant their yielding of obedience to such an
extraordinary impulsion. And if it be so,
they must show a lawful and immediate ex-
traordinary impulsion now, but, it is certain,
the sins of the people conquered, and their
most equal and just demerit before God,
cannot be a just plea to legitimate the con-
quest; for though the people of God de-
served devastation and captivity by the
heathen, in regard of their sins, before the
throne of divine justice, yet the heathen
grievously sinned in conquering them, Zech.
i. 15, " And I am very sore displeased
with the heathen that are at ease ; for I
was but a little displeased, and they helped
forward the affliction." So though Judah
deserved to be made captives, and a con-
quered people, because of their idolatry and
other sins, as Jeremiah had prophecied, yet
God was highly displeased at Babylon for
their unjust and bloody conquest, Jer. 1. 17,
18, 33, 34 ; li. 35, " The violence done io
me and to my flesh be upon Babylon, shall
the inhabitants of Zion say ; and my blood
upon the inhabitants of Chaldea, shall Jeru-
salem say." And that any other extraor-
dinary impulsion to be as lawful a call to
the throne as the people's free election, we
know not from God's word ; and we have
but the naked word of our adversaries, that
William the Conqueror, without the people's
consent, made himself, by blood, the lawful
king of England, and aLso of all their poste-
rity ; and that king Fergus conquered Scot-
land.
Arg. 5. — A king is a special gift from
God, given to feed and defend the people
of God, that they may lead a godly and
peaceable life under him, (Psal. lxxviii. 71,
72 ; 1 Tim. ii. 2 ;) as it is a judgment of
God that Israel is without a king many
days, (Hos. hi. 4,) and that there is no
judge, no king, to put evil-doers to shame.
(Judg. xix. 1.) But if a king be given of
God as a king, by the acts of a bloody con-
quest, to be avenged on the sinful land over
which he is made a king, he cannot be given,
actu primo, as a special gift and blessing of
God to feed, but to murder and to destroy ;
for the genuine end of a conqueror, as a
conqueror, is not peace, but fire and sword.
If God change his heart, to be of a bloody
devastator, a father, prince, and feeder of
the people, ex officio, now he is not a violent
conqueror, and he came to that meekness by
contraries, which is the proper work of the
omnipotent God, and not proper to man,
who, as he cannot work miracles, so neither
can he lawfully work by contraries. And so
if conquest be a lawful title to a crown, and an
ordinary calling, as the opponents presume,
every bloody conqueror must be changed
into a loving father, prince and feeder ; and
if God call him, none should oppose him, but
the whole land should dethrone their own
native sovereign (whom they are obliged be-
fore the Lord to defend) and submit to the
bloody invasion of a strange lord, presumed
to be a just conqueror, as if he were lawfully
called to the throne both by birth and the
voices of the people. And truly they de-
serve no wages who thus defend the king's
prerogative royal ; for if the sword be a law-
ful title to the crown, suppose the two gene-
rals of both kingdoms should conquer the
most and the chiefest of the kingdom now,
when they have so many forces in the field,
by this wicked reason the one should have
a lawful call of God to be king of England
and the other to be king of Scotland ; which
is absurd.
Arg. 6. — Either conquest, as conquest, is
a just title to the crown, or as a just con-
quest. If as a conquest, then all conquests
are just titles to a crown ; then the Ammo-
nites, Zidonians, Canaanites, Edomites, &c,
subduing God's people for a time, have just
title to reign over them ; and if Absalom
had been stronger than David, he had then
had the just title to be the Lord's anoint
ted and king of Israel, not David ; and so
strength actually prevailing should be God's
lawful call to a crown. But strength, as
strength victorious, is not law nor reason : it
were then reason that Herod behead John
Baptist, and the Roman Emperors kill the
witnesses of Christ Jesus. If conquest, as
just, be the title and lawful claim before
God's court to a crown, then, certainly, a
stronger king, for pregnant national injuries,
may lawfully subdue and reign over an in-
nocent posterity not yet born. But what
word of God can warrant a posterity not
born, and so accessory to no offence against
the conqueror, (but only sin original,) to be
under a conqueror against their will, and
THE LAW AND THE PRINCE.
49
who hath no right to reign over them hut
the hloody sword ? For so conquest, as con-
quest, not as just, maketh him king over
the posterity. If it be said, The fathers
may engage the posterity hy an oath to sur-
render themselves as loyal subjects to the
man who justly and deservedly made the
fathers vassals by the title of the sword of
justice ; I answer, The fathers may indeed
dispose of the inheritance of their children,
because that inheritance belongeth to the
father as well as to the son ; but because
the liberty of the son being born with the
son, (all men being born free from all civil
subjection,) the father hath no more power
to resign the liberty of his children than
their lives ; and the father, as a father, hath
not power of the life of his child ; as a magis-
trate he may have power, and, as something
more than a father, he may have power of
life and death. I hear not what Grotius
saith,1 " Those who are not born have no
accidents, and so no rights, Non entis nulla
sunt accidentia ; then children not bqrn
have neither right nor liberty." And so no
injury (may some say) can be done to chil-
dren not born, though the fathers should
give away their liberty to the conquerors, —
those who are not capable of law are not
capable of injury contrary to law. — Ans.
There is a virtual alienation of rights and
lives of children not born unlawful, because
the children are not born. To say that
children not born are not capable of law and
injuries virtual, which become real in time,
might say, Adam did not any injury to his
posterity by his first sin, which is contrary
to God's word ; so those who vowed yearly
to give seven innocent children to the Mino-
taur to be devoured, and to kill their chil-
dren not born to bloody Molech, did no acts
of bloody injury to their children ; nor can
any say, then, that fathers cannot tie them-
selves and their posterity to a king by suc-
cession. But I say, to be tyed to a lawful
king is no making away of liberty, but a re-
signing of a power to be justly governed,
protected and awed from active and passive
violence.
Arg. 7. — No lawful king may be de-
throned, nor lawful kingdom dissolved ; but
law and reason both saith, Quod vi partum
est imperium, vi dissolvi potest. Every
conquest made by violence may be dissolved
1 Hugo Grotius de jure belli et pacis,
c. 4, n. 10.
by violence: C&nsetur enim ipsa natura
jus dare ad id omnc, sine quo ob.tineri non
potest quod ipsa imperat.
Obj. — It is objected, that the people of
God, by their sword, conquered seven na-
tions of the Canaanites ; David conquered
the Ammonites for the disgrace done to his
ambassadors ; so God gave Egypt to Nebu-
chadnezzar for his hire in his service done
against Judah. Had David no right over
the A/mnonites and Moabites but by expect-
ing their consent ? Ye wil] say, A right to
their lands, goods and lives, but not to chal-
lenge their moral subjection. Well, we
doubt nQt but such conquerors wjll chal-
lenge and obtain their moral consent. But
if the people refuse their consent, is there
no way, for providence giveth no right ? So
Dr Feme,1 so Arnisseus.?
Ans. — A facto ad jus non vales conse*
quentia, God, to whom belongeth the world
and the fulness thereof, disponed to Abra-
ham and his seed the land of Canaan for
their inheritance, and ordained that they
should use their bow and their sword, for
the actual possession thereof; and the like
divine right had David to the Edomites and
Ammonites, though the occasion of David's
taking possession of these kingdoms by his
sword, did arise from particular and occa-
sional exigencies and injuries ; but it follow-
eth in no sort that, therefore, kings now
wanting apy word of promise, and so of di-
vine right to any lands, may ascend to the
thrones of other kingdoms than their own,
by no other title than the bloody sword.
That God's will was the chief patent here is
clear, in that God forbade his people to con-
quer Edom, or Esau's possession, when as he
gave them command to conquer the Amo-
rites. I doubt not to say, if Joshua and
David had no better title than their bloody
sword, though provoked by injuries, they
could have had no right to any kingly power
over these kingdoms ; and if only success by
the sword be a right of providence, it is no
right of precept. God's providence, as pro-
vidence without prepept or promise, can con-
clude a thing is done, or may be done, but
cannot conclude a thing is lawfully and war-
rantably done, else you might say the sel-
ling of Joseph, the crucifying of Christ, the
spoiling of Job, were lawfully done. Though
conquerors extort consent and oath of loyal-
1 Dr Feme part 3, sect. 3, p. 20.
2 Arnisasus de authoritat princip. c. 1, n. VI
I
! 50
LEX, REX ; OR,
ty, yet that maketh not over a royal right
to the conqueror to be king over their pos-
terity without their consent. Though the
children of Ammon did a high injury to
David, yet no injury can be recompensed in
justice with the pressure of the constrained
subjection of loyalty to a violent lord. If
David had not had an higher warrant from
God than an injury done to his messengers,
he could not have conquered them. But
the Ammonites were the declared enemies
of the church of God, and raised forces
against David when they themselves were
the injurers and offenders. And if David's
conquest will prove a lawful title by the
sword to all conquerors, then may all con-
querors lawfully do to the conquered people
as David did ; that is, they may " put them
under saws, and under harrows of iron, and
under axes of iron, and cause them pass
through the brick-kilne." But, I beseech
you, will royalists say, that conquerors, who
make themselves kings by their sword, and
so make themselves fathers, heads, defen-
ders, and feeders of the people, may use the
most extreme tyranny in the world, such as
David used against the children of Ammon,
which he could not have done by the naked
title of sword-conquest, if God had not laid
a commandment of an higher nature on him
to serve God's enemies so ? I shall then
say, if a conquering king be a lawful king,
because a conqueror, then hath God made
such a lawful king both a father, because a
king, and a tyrant, and cruel and lion-
hearted oppressor of those whom he hath
conquered ; for God hath given him royal
power by this example, (2 Sam. xii. 30, 31,)
to put these, to whom he is a father and de-
fender by office, to torment, and also to be
a torturer of them by office, by bringing
their backs under such instruments of cruel-
ty as " saws, and harrows of iron, and axes
of iron."
QUESTION XIII.
WHETHER OR XO ROYAL DIGNITY HAVE ITS
SPRING FROM NATURE, AND HOW THAT IS
TRUE, " EVERY MAN IS BORN FREE," AND
HOW SERVITUDE IS CONTRARY TO NATURE.
I conceive it to be evident that royal dig-
nity is not immediately, and without the in-
tervention of the people's consent, given by
God to any one person, and that conquest
and violence is no just title to a crown.
Now the question is, If royalty flow from
nature, if royalty be not a thing merely na-
tural, neither can subjection to royal power
be merely natural ; but the former is rather
civil than natural : and the question of the
same nature is, Whether subjection or servi-
tude be natural.
I conceive that there be divers subjections
to these that are above us some way natural,
and therefore I rank them in order, thus : —
1. There is a subjection in respect of na-
tural being, as the effect to the cause ; so,
though Adam had never sinned, this mora-
lity of the fifth command should have stood
in vigour, that the son by nature, without
any positive law, should have been subject
to the father, because from him he hath his
being, as from a second cause. But I doubt
if the relation of a father, as a father, doth
necessarily infer a royal or kingly authority
of the father over the son ; or by nature's
law, that the father hath a power of life and
death over, or above, his children, and the
reasons I give are, (1.) Because power of
fife and death is by a positive law, presup-
posing sin and the fall of man ; and if Adam,
standing in innocency, could lawfully kill his
son, though the son should be a malefactor,
without any positive law of God, I much
doubt. (2.) I judge that the power royal,
and the fatherly power of a father over his
children, shall be found to be different ; and
the one is founded on the law of nature, the
other, to wit, royal power, on a mere posi-
tive law. 2. The degree or order of sub-
jection natural is a subjection in respect of
gifts or age. So Aristotle (1 polit. cap. 3)
saith, " that some are by nature servants."
His meaning is good, — that some gifts of
nature, as wisdom natural, or aptitude to
govern, hath made some men of gold, fitter
to command, and some of iron and clay, fit-
ter to be servants and slaves. But I judge
this title to make a king by birth, seeing
Saul, whom God by supervenient gifts made
a king, seemeth to owe small thanks to the
womb, or nature, that he was a king, for his
cruelty to the Lord's priests speaketh no-
thing but natural baseness. It is possible
Plato had a good meaning, (dialog. 3, de le-
gib.) who made six orders here. " 1. That
fathers command their sons; 2. The noble
the ignoble ; 3. The elder the younger ; 4.
The masters the servants ; 5. The stronger
the weaker ; 6. The wise the ignorant."
THE LAW AND THE PRINCE.
01
Aquinas (22, q. 57, art. 3), Driedo (de li-
bert. Christ, lib. 1, p. 8), following Aristo-
tle, (polit. lib. 7, c. 14,) hold, though man
had never sinned there should have been a
sort of dominion of the more gifted and
wiser above the less wise and weaker ; not
antecedent from nature properly, but conse-
quent, for the utility and good of the weaker,
in so far as it is good for the weaker to be
guided by the stronger, which cannot be de-
nied to have some ground in nature. But
there is no ground for kings by nature here.
1. Because even those who plead that the
mother's womb must be the best title for a
crown, and make it equivalent to royal unc-
tion, are to be corrected in memory thus, —
That it is merely accidental, and not natu-
ral, for such a son to be born a king, because
the free consent of the people making choice
of the first father of that line to be their
king, and in him making choice of the first-
born of the family, is merely accidental to
father and son, and so cannot be natural.
2. Because royal gifts to reign are not held
by either us or our adversaries to be the
specific essence of a king ; for if the people
crown a person their king, say we,— if the
womb bring him forth to be a king, say the
opponents, — he is essentially a king, and to be
obeyed as the Lord's anointed, though na-
ture be very farce, sparing, and a niggard
in bestowing royal gifts ; yea, though he be
an idiot, say some, if he be the first-born of
a king, he is by just title a king, but must
have curators and tutors to guide him in
the exercise of that royal right that he hath
from the womb. But Buchanan saith well,1
" He who cannot govern himself shall never
govern others."
Assert. 1. — As a man cometh into the
world a member of a politic society, he is,
by consequence, born subject to the laws of
that society ; but this maketh him not, from
the womb and by nature, subject to a king,
as by nature he is subject to his father who
begat him, no more than by nature a Hon is
born subject to another king-lion ; for it is
by accident that he is born of parents under
subjection to a monarch, or to either democra-
tical or aristocratical governors, for Cain and
Abel were born under none of these forms
of government properly ; and if he had been
born in a new planted colony in a wilderness,
where no government were yet established,
he should be under no such government.
Buclian. de jure Regni apud Scotos.
Assert. 2. — Slavery of servants to lords or
masters, such as were of old amongst the
Jews, is not natural, but against nature.
1. Because slavery is malum naturce, a
penal evil and contrary to nature, and a
punishment of sin. 2. Slavery should not
have been in the world, if man had never
sinned, no more than there could have been
buying and selling of men, which is a miser-
able consequent of sin and a sort of death,
when men are put to the toiling pains of the
hireling, who longeth for the shadow, and
under iron harrows and saws, and to hew
wood, and draw water continually. 3. The
original of servitude was, when men were
taken in war, to eschew a greater evil, even
death, the captives were willing to undergo
a less evil, slavery, (S. Servitus, 1 de jure.
Pers.) 4. A man being created according to
God's image, he is res sacra, a sacred thing,
and can no more, by nature's law, be sold
and bought, than a religious and sacred
thing dedicated to God. S. 1. Instit. de
inutil. scrupl. I. inter Stipulantem. S.
Sacram. F. de verber. Obligat.
Assert. 3. — Every man by nature is a free-
man born, that is, by nature no man cometh
out of the womb under any civil subjection
to king, prince, or judge, to master, captain,
conqueror, teacher, &c.
Arg. 1. — Because freedom is natural to
all, except freedom from subjection to pa-
rents ; and subjection politic is merely acci-
dental, coming from some positive laws of
men, as they are in a politic society; whereas
they might have been born with all concomi-
tants of nature, though born in a single
family, the only natural and first society in
the world.
Arg. 2. — Man is born by nature free from
all subjection, except of that which is most
kindly and natural, and that is fatherly or
filial subjection, or matrimonial subjection of
the wife to the husband ; and especially he
is free of subjection to a prince by nature ;
because to be under jurisdiction to a judge
or king, hath a sort of jurisdiction, (argu-
ment, L. Si quis sit fugitivus. F. de edit,
edict, in S. penult, vel Jin.) especially to be
under penal laws now in the state of sin.
The learned senator Ferdinandus Vasquez
saith, (lib. 2. c. 82. n. 15,) Every subject is
to lay down his life for the prince. Now no
man is born under subjection to penal laws
or dying for his prince.
Arg. 3. — Man by nature is born free, and
as free as beasts ; but by nature no beast, no
LEX, REX ; OR,
lion is born king of lions ; no horse, no bul-
lock, no eagle, king of horses, bullocks, or
eagles. Nor is there any subjection here,
except that the young lion is subject to the
old, every foal to its dam ; and by that same
law of nature, no man is born king of men,
nor any man subject to man in a civil sub-
jection by nature, (I speak not of natural
subjection of children to parents,) and there-
fore Ferdi. Vasquez (illustr; quest, lib. 2,
c. 82, n. 6,) said, that kingdoms and empires
were brought in, not by nature's law, but by
the law of nations. He expoundeth himself
elsewhere to speak of the law of nature secon-
dary, otherwise the primary law of nations is
indeed the law of nature, as appropriated to
man. If any reply, That the freedom natu-
ral of beasts and birds, who never sinned, can-
not be one with the natural freedom of man
who is now under sin, and so under bondage
for sin, my answer is, That the subjection of
the misery of man by nature, because of sin,
is more than the subjection of beasts, com-
paring species and kinds of beasts and birds
with mankind, but comparing individuals of
the same kind amongst themselves ; as lion
with lion, eagle with eagle, and so man with
man ; in which respect, because he who is
supposed to be the man born free from sub-
jection politic, even the king born a king, is
under the sam state of sin, and so by rea-
son of sin, of which he hath a share equally
with all other men by nature, he must be,
by nature, born under as great subjection
penal for sin (except the king be born void
of sin) as other men ; therefore he is not
born freer by nature than other men, ex-
cept he come out of the womb with a king's
crown on his head.
Ar<j. 4. — To be a king is a free gift of
God, which God bestoweth on some men
above others, as is evident, (2 Sam. xii. 7, 8;
Psal. lxxv. 6 ; Dan. iv. 32 ;) and therefore
all must be born kings, if any one man be by
nature a king bom, and another a bom sub-
ject. But if some be by God's grace made
kings above others, they are not so by na-
ture ; for things which agree to man by na-
ture, agree to all men equally : but all men
equally are not born kings, as is evident ;
and all men are not equally born by nature
under politic subjection to kings, as the ad-
versaries grant-, because those who are by na-
ture kings, cannot be also by nature subjects.
Arg. 5. — If men be not by nature free
from politic subjection, then must some, by
the law of relation, by nature be kings. But
none are by nature kings, because none have
by nature these things which essentially con-
stitute kings, for they have neither by na-
ture the calling of God, nor gifts for the
throne, nor the free election ol the people,
nor conquest ; and if there be none a king
by nature, there can be none a subject by
nature. And the law saith, Omnes sumus
natura liberi, nullius ditioni subjecti. lib.
Manumiss. F. de just, etjur. S.jus antem
gentium, Jus. de jur. nat. We are by na-
ture free, and I). L. ex hoc jure cum simil.
Arg. 6.— Politicians agree to this as an un-
deniable truth, that as domestic society is na-
tural, being grounded upon nature's instinct,
so politic society is voluntary, being ground-
ed on the consent of men ; and so politic
society is natural, in radice, in the root, and
voluntary and free, in modo, in the manner
of their union ; and the Scripture cleareth
to us, that a king is made by the free con-
sent of the people , (Deut xvii. 15,) and so
not by nature.
Arg. 7- — What is from the womb, and so
natural, is eternal, and agreeth to all socie-
ties of men ; but a monarchy agreeth not to
all societies of men ; for many hundred years,
de facto, there was not a king till Nimrod's
time, the world being governed by families,
and till Moses' time we find no institution
for kings, (Gen. vii.) and the numerous mul-
tiplication of mankind did occasion monar-
chies, otherwise, fatherly government being
the first and measure of the rest, must be
the best ; for it is better that my father go-
vern me, than that a stranger govern me,
and, therefore, the Lord forbade his people
to set a stranger over themselves to be their
king. The P. Prelate contendeth for the
contrary, (c. 12, p^ 125,) " Every man
(saith he) is bom subject to his father, of
whom immediately he hath his existence in
nature ; and if his father be the subject of
another, he is born the subject of his fa-
ther's superior." — Ans. But the consequence
is weak. Every man is bom under natural
subjection to his father, therefore he is bom
naturally under civil subjection to his father's
superior or king. It followeth not. Yea,
because his father was born only by nature
subject to his own father, therefore he was
subject to a prince or king only by accident,
and by the free constitution of men, who
freely choose politic government, whereas
there is no government natural, but fatherly
or marital, and therefore the contradictory
consequence is true-.
THE LAW AND THE PRINCE.
53
P. Prelate. — Every man by nature hath
immunity and liberty from despotical and
hierarchial empire, and so may dispose of his
own at will, and cannot enslave himself with-
out his own free will ; but God hath laid a
necessity on all men to be under govern-
ment, and nature also laid this necessity on
him, therefore this sovereignty cannot pro-
tect us in righteousness and honesty, except
it be entirely endowed with sovereign power
to preserve itself, and protect us.
Ans. — 1. The Prelate here desert eth his
own consequence, which is strong against
himself, for if a man be naturally subject to
his father's superior, as he said before, why
is not the son of a slave naturally subject to
his father's superior and master ? 2. As a
man may not make away his liberty with-
out his own consent, so can he not, without
his own consent, give his liberty to be sub-
ject to penal laws under a prince, without
his own consent, either in his father's or in
the representative society in which he liveth.
3.' God and nature hath laid a necessity on
all men to be under government, a natural
necessity from the womb to be under some
government, to wit, a paternal government,
that is true ; but under this government po-
litic, and namely under sovereignty, it is
false; and that is but said : for why is he na-
turally under sovereignty rather than aris-
tocracy ? I believe any of the three forms
are freely chosen by any society. 4. It is
false that one cannot defend the people, ex-
cept he have entire power, that is to say, he
cannot do good except he have a vast power
to do both good and ill.
P. Prelate. — It is accidental to any to
render himself a slave, being occasioned by
force or extreme indigence, but to submit to
government congruous to the condition of
man, and is necessary for his happy being,
and natural, and necessary, by the inviola-
ble ordinance of God and nature;
Ans. 1. — If the father be a slave, it is
natural and not accidental} by the Prelate's
logic, to be a slave. 2. It is also accidental
to be under sovereignty, and sure not natu-
ral ; for then aristocracy and democracy must
be unnatural, and so unlawful governments.
3. If to be congruous to the condition of
man be all one with natural man, (which he
must say if he speak sense) to believe in God,
to be an excellent mathematician, to swim
in deep waters, being congruous to the nature
of man, must be natural. 4. Man by na-
ture is under government paternal, not poli-
tic properly, but by the free consent of his
will.
P. Prelate (p. 126).— Luke xi. 5, Christ
himself was b*ora.cr(riittho; subject to his pa-
rents, (the word which is used, Rom. xiii.)
therefore none are exempted from subjec-
tion to lawful government.
Ans. — We never said that any were ex-
empted from lawful government. The Pre-
late and his fellow Jesuits teach that the
clergy are exempted from the laws of the
civil magistrate, not we ; but because Christ
was subject to his parents, and the same
word is used, Luke xi., which is in Rom.
xiii., it will not follow, therefore^ men are
by nature subject to kings, because they are
by nature subject to parents.
P. Prelate. — The father had power over
the children, by the law of God and nature,
to redeem himself from debt, or any dis-
tressed condition, by enslaving his children
begotten of his own body ; if this power was
not by the right of nature and by the war-
rant of God, I can see no other, for it could
not be by mutual and voluntary contract of
children and fathers.
Ans. — 1. Show a law of nature, that the
father might enslave his children ; by a di-
vine positive law, presupposing sin, the father
might do that ; and yet I think that may be
questioned, whether it was not a permission
rather than a law, as was the bill of divorce ;
but a law of nature it was not; 2. The P.
Prelate can see no law but the law of nature
here ; but it is because he is blind or will not
see. His reason is, It was not by mutual
and voluntary contract of children and fa-
thers, therefore it was by the law of nature;
so he that cursed his father was to die by
God's law. This law was not made by mu-
tual consent betwixt the father and the son,
therefore it was a law of nature : the Pre-
late will see no better. Nature will teach a
man to enslave himself to redeem himself
from death, but that it is a dictate of nature
that a man should enslave his son, I conceive
not. 3; What can this prove, but that if
the son may, by the law of nature, be en-
slaved for the father, but that the son of a
slave is by nature under subjection to sla-
very, and that by nature's law ; the con-
trary whereof he spake in the page preced-
ing, and in this same page.
As for the argument of the Prelate to an-
swer Suarez, who laboureth to prove monar-
chy not to be natural, but of free consent,
because it is various in sundry nations, it
54
is the Jesuits' argument, not ours. I own
it not. Let Jesuits plead for Jesuits.
QUESTION XIV.
WHETHER OR NO THE PEOPLE MAKE A PER-
SON THEIR KING CONDITIONALLY, OR AB-
SOLUTELY; AND WHETHER THERE BE SUCH
A THING AS A COVENANT TYING THE KING
NO LESS THAN HIS SUBJECTS.
There is a covenant natural, and a cove-
nant politic and civil. There is no politic or
civil covenant betwixt the king and his sub-
jects, because there be no such equality (say
royalists) betwixt the lung and his people,
as that the king can be brought under any
civil or legal obligation in man's court, to
either necessitate the king civilly to keep an
oath to his people, or to tie him to any
punishment, it' he fail, yet (say they) he is
under natural obligation in God's court to
keep his oath, but he is accountable only to
God if he violate his oath.
Assert. 1 — There is an oath betwixt the
king and his people, laying on, by reciproca-
tion of bands, mutual civil obligation upon
the king to the people, and the people to
the king; 2 Sam. v. 3, "So all the elders of
Israel came to the king to Hebron, and
king David made a covenant with them in
Hebron before the Lord, and they anointed
David king over Israel." 1 Chron. xi. 3,
" And David made a covenant with them
before the Lord, and they anointed David
king over Israel, according to the word of
the Lord by Samuel." 2 Chron. xxiii. 2, 3,
" And they went about in Judah, and ga-
thered the Levites out of all the cities of
Judah, and the chief of the fathers of Israel,
and they came to Jerusalem. And all the
congregation made a covenant with the king
[Joash] in the house of God." 2 Kings xi.
17, " Jehoiada made a covenant between the
Lord and the king and the people, that
they should be the Lord's people ; between
the king also and the people." Eccl. viii. 2,
" I counsel thee to keep the king's com-
mandment, and that in regard of the oath
of God." Then it is evident there was a
covenant betwixt the king and the people.
That was not a covenant that did tie the
king to God only, and not to the people, —
1. Because the covenant betwixt the king
and the people is clearly differenced from
the king's covenant with the Lord, 2 Kings
xi. 17. 2. There was no necessity that
this covenant should be made publicly be-
fore the people, if the king did not in the
covenant tie and oblige himself to the peo-
ple ; nor needed it be made solemnly before
the Lord in the house of God. 3. It is
expressly a covenant that was between Joash
the king and his people ; and David made a
covenant at his coronation with the princes
and elders of Israel, therefore the people
gave the crown to David covenant-wise, and
upon condition that he should perform such
and such duties to them. And this is clear
by all covenants in the word of God : even
the covenant between God and man is in
like manner mutual, — " I will be your God,
and ye shall be my people." The covenant
is so mutual, that if the people break the
covenant, God is loosed from his part of the
covenant, Zech. xi. 10. The covenant giv-
eth to the believer a sort of action of law,
and jus quoddam, to plead with God in
respect of his fidelity to stand to that cove-
nant that bindeth him by reason of his fi-
delity, Isa. xliii. 26; lxiii. 16; Dan.ix. 4, 5;
and far more a covenant giveth ground of a
civil action and claim to a people and the
free estates against a king, seduced by wicked
counsel to make war against the land, where-
as he did swear by the most high God, that
he should be a father and protector of the
church of God.
Assert. 2. All covenants and contracts
between man and man, yea, all solemn pro-
mises, bring the covenanters under a law
and a claim before men, if the oath of God
be broken, as the covenant betwixt Abra-
ham and Abimelech, (Gen. xxi. 27,) Jona-
than and David. (1 Sam. xviii. 3.) The
spies profess to Rahab in the covenant that
they made with her, (Josh. ii. 20,) " And if
thou utter this our business, we will be quit
of thine oath which thou hast made us to
swear." There be no mutual contract made
upon certain conditions, but if the conditions
be not fulfilled, the party injured is loosed
from the contract. Barclay saith, " That
this covenant obligeth the king to God, but
not the king to the people." — Ans. It is a
vain thing to say that the people and the
king make a covenant, and that David made
a covenant with the elders and princes of
Israel ; for if he be obliged to God only, and
not to the people, by a covenant made with
the people, it is not made with the people at
all, nay, it is no more made with the people
THE LAW AND THE PRINCE.
55
I of Israel than with the Chaldeans, for it
bindeth David no more to Israel than to
Chaldea, as a covenant made with men.
Arnisseus saith,1 " When two parties con-
tract, if one perform the duty, the other is
acquitted." Sect. Oex hujus mod ubi vult
just, de duob. reis, lib. 3. Dr Feme saith,
" Because every one of them are obliged
fully (Sect. 1) Just. cod. to God, to whom
the oath is made (for that is his meaning),
and if either the people perform what is
sworn to the Lord or the king, yet one of
the parties remaineth still under obligation ;
and neither doth the people's obedience ex-
empt the king from punishment, if he fail,
nor the king's obedience exempt the people,
if they fail, but every one beareth the pun-
ishment of his own sin ; and there is no mu-
tual power in the parties to compel one an-
other to perform the promised duty, because
that belongeth to the pretor or magistrate,
before whom the contract is made. The
king hath jurisdiction over the people, if
they violate their oath; but the people hath
no power over the prince; and the ground
that ArnisEeus layeth down is this, — 1. The
king is not a party contracting with the peo-
ple, as if there were mutual obligations be-
twixt the king and the people, and a mutual
co-active power on either side. 2. That the
care of religion belongeth not to the people,
for that hath no warrant in the Word (saith
he). 3. We read not that the people was
to command and compel the priests and the
king to reform religion and abolish idolatry,
as it must follow, if the covenant be mutual.
4. Jehoiada (2 Kings xi.) obligeth himself,
and the king, and the people, by a like law,
to serve God ; and here be not two parties
but three — the high priest, the king, and
the people, if this example prove any thing.
5. Both king and people shall find the re-
venging hand of God against them, if they
fail in the breach of their oath ; every one,
king and people, by the oath stand obliged
to God, the king for himself, and the people
for themselves, but with this difference, the
king oweth to God proper and due obedience
as any of the subjects, and also to govern
the people according to God's true religion,
(Deut. xvii. ; 2 Chron. xxix. ;) and in this
the king's obligation differeth from the peo-
ple's obligation ; the people, as they would
be saved, must serve God and the king, for
the same cause. (1 Sam. xii.) But, besides
i Amis, de authorit. prin. c. 1. n. 6, 7.
this, the king is obliged to rule and govern
the people, and keep them in obedience to
God ; but the people is not obliged to go-
vern the king, and keep him in obedience
to God, for then the people should have as
great power and jurisdiction over the king,
as the king hath over the people, which is
against the word of God, and the examples
of the kings of Judah ; but this cometh not
from any promise or covenant that the king
hath made with the people, but from a pe-
culiar obligation whereby he is obliged to
God as a man, not as a king : —
Arg. 1. — This is the mystery of the busi-
ness which I oppose in these assertions.
Assert. 1. — As the king is obliged to God
for the maintenance of true religion, so are
the people and princes no less in their place
obliged to maintain true religion ; for the
people are rebuked, because they burn in-
cense in all high places, 2 Kings xvii. 11 ;
2 Chron. xxxiii. if ; Hos. iv. 13. And the
reason why the high places are not taken
away, is given in 2 Chron. xx. 33, for as yet
the people " had not prepared their heart
unto the God of their fathers ;" but you will
reply, elicit acts of maintenance of true re-
ligion are commanded to the people, and
that the places prove ; but the question is
de actibus imperatis, of commanded acts of
religion, sure none but the magistrate is to
command others to worship God according
to his word. I answer, in ordinary only,
magistrates (not the king only but all the
princes of the land) and judges are to main-
tain religion by their commandments, (Deut.
i. 16 ; 2 Chron. i. 2 ; Deut. xvi. 19 ; Eccles.
v. 8 ; Hab. i. 4 ; Mic. hi. 9 ; Zech. vii. 9 ;
Hos. v. 10, 11,) and to take care of reli-
gion ; but when the judges decline from
God's way and corrupt the law, we find the
people punished and rebuked for it : Jer. xv.
4, " And I will cause them to be removed
to all kingdoms of the earth, because of Ma-
nasseh, the son of Hezekiah king of Judah,
for that which he did in Jerusalem;" 1 Sam.
xii. 24, 25, " Only fear the Lord ; but if ye
shall still do wickedly, ye shall be consumed,
both ye and your king." And this case, I
grant, is extraordinary ; yet so, as Junius
Brutus proveth well and strongly, that reli-
gion is not given only to the king, that he
only should keep it, but to all the inferior
judges and people also in their kind ; but
because the estates never gave the king
power to corrupt religion, and press a false
and idolatrous worship upon them, therefore
•30
LEX, REX ; OR,
when the king defendeth not time religion,
but presseth upon the people a false and
idolatrous religion, in that they are not un-
der the king, but are presumed to have no
king, catenus, so far, and are presumed to
have the power in themselves, as if they had
not appointed any king at all ; as if we pre-
sume the body had given to the right hand
a power to ward off strokes and to defend
the body ; if the right hand should by a pal-
sy, or some other disease, become impotent,
and be withered up, when ill is coming on
the body, it is presumed that the power of
defence is recurred to the left hand, and to
the rest of the body to defend itself in this
case as if the body had no right hand, and
had never communicated any power to the
right hand. So if an incorporation accused
of treason, and in danger of the sentence of
death, shall appoint a lawyer to advocate
their cause, and to give in their just de-
fences to the judge, if their advocate be
stricken with dumbness, because they have
lost their legal and representative tongue,
none can say that this incorporation hath
lost the tongues that nature hath given
them, so as by nature's law they may not
plead in their own just and lawful defence,
as if they had never appointed the foresaid
lawyer to plead for them. The king, as a
man, is not more obliged to the public and
regal defence of the true religion than any
other man of the land ; but he is made by
God and the people king, for the church and
people of God's sake, that he may defend
true religion for the behalf and salvation of
all. If therefore he defend not religion for
the salvation of the souls of all in his public
and royal way, it is presumed as undeniable
that the people of God, who by the law of
nature are to care for their own souls, are
to defend in their way true religion, which
so nearly concerneth them and their eternal
happiness.
Assert. 2. — When the covenant is betwixt
God, on the one part, and the king, priests
and people, on the other ; it is true, if the
one perform for his part to God the whole
duty, the other is acquitted : as if two men
be indebted to one man ten thousand pounds,
if the one pay the whole sum the other is ac-
quitted. But the king and people are not
so contracting parties in covenant with God
as that they are both indebted to God for
one and the same sum of complete obedience,
so as if the king pay the whole sum of obe-
dience to God, the people are acquitted ; and
if the people pay the whole sum, the king is
acquitted : for every one standeth obliged to
God for himself; for the people must do all
that is their part in acquitting the king from
his royal duty, that they may free him and
themselves both from punishment, if he dis-
obey the King of kings ; nor doth the king's
obedience acquit the people from their duty.
Arnisseus dreamed if he believed that we
make king and people this way party-con-
tractors in covenant with God. Nor can
two copartners in covenant with God so mu-
tually compel one another to do their duty ;
for we hold that the covenant is made be-
twixt the king and the people, betwixt mor-
tal men ; but they both bind themselves be-
fore God to each other. But saith Arni-
saeus, " It belongeth to a pretor or ruler,
who is above both king and people, to com-
pel each of them, — the king to perform his
part of the covenant to the people, and the
people to perform their part of the covenant
to the king. Now there is no ruler but God,
above both king and people." But let me
answer. The consequence is not needful, no
more than when the king of Judah and the
king of Israel make a covenant to perform
mutual duties one to another, — no more
than it is necessary that there should be a
king and superior ruler above the king of
Israel and the king of Judah, who should
compel each one to do a duty to his fellow-
king; for the king and people are each of
them above and below others in divers re-
spects : the people, because they create the
man king, they are so above the king, and
have a virtual power to compel him to do
his duty ; and the king, as king, hath an
authoritative power above the people, be-
cause royalty is formally in him, and origi-
nally and virtually only in the people, there-
fore may he compel them to their duty, as
we shall hear anon ; and therefore there is
no need of an earthly ruler higher than
both, to compel both.
Assert. 3. — We shall hereafter prove the
power of the people above the king, God
willing ; and so it is false that there is not
mutual coactive power on each side.
Assert. 4. — The obligation of the king in
this covenant floweth from the peculiar na-
tional obligation betwixt the king and the
estates, and it bindeth the king as king, and
not simply as he is a man. 1. Because it
is a covenant betwixt the people and David,
not as he is the son of Jesse, for then it
should oblige Eliab, or any other of David's
THE LAW AND THE PKl.WF..
brethren ; yea, it should oblige any man if
it oblige David as a man ; but it obligeth
David as a king, or as he is to be their king,
because it is the specific act of a king that
he is obliged unto, to wit, to govern the
people in righteousness and religion with his
royal power. And so it is false that Arni-
sseus saith, that " the king, as a man, is ob-
liged to God by this covenant, not as a king."
2, He saith, by covenant the king is bound
to God as a man, not as a king. But so the
man will have the king, as king, under no
law of God ; and so he must either be above
God, as king, or co-equal with God ; which
are manifest blasphemies. For I thought
ever the royalists had not denied that the
king, as king, had been obliged to keep his
oath to his subjects, in relation to God, and
in regard of natural obligation, — so as, he
sinneth before God if he break his covenant
with his people, — though they deny that he
is obliged to keep his covenant in relation to
his subjects, and in regard of politic or civil
obligation to men. Sure I am this the roy-
alists constantly teach. 3. He would have
this covenant so made with men as it oblig-
eth not the king to men, but to God. But
the contrary is true. Besides the king and
the people's covenant with the Lord, king
Joash made another covenant with the peo-
ple, and Jehoiada the priest was only a wit-
ness, or one who, in God's name, performed
the rite of anointing ; otherwise he was a
subject on the people's side, obliged to keep
allegiance to Joash, as to his sovereign and
master. But, certainly, whoever maketh a
covenant with the people, promising to go-
vern them according to God's word, and
upon that condition and these terms re-
ceiveth a throne and crown from the peo-
ple, he is obliged to what he promiseth to
the people, Omnis promittcns, facit alteri,
cui promissio facta est, jus in promitten-
tem. Whoever maketh a promise to an-
other, giveth to that other a sort of right
or jurisdiction to challenge the promise.
The covenant betwixt David and Israel
were a shadow, if it tie the people to alle-
giance to David as their king, and if it tie
not David as king to govern them in right-
eousness ; but leave David loose to the peo-
ple, and only tie him to God, then it is a co-
venant betwixt David and God only : but the
text saith, it is a covenant betwixt the king
and the people, 2 Kings xi. 17 ; 2 Sam. v. 3.
Arg. 2. — Hence our second argument.
He who is made a minister of God, not sim-
ply, but for the good of the subject, and so
lie take heed to God's law as a king, and
govern according to God's will, he is in so
lar only made king by God as he fulfilleth
the condition ; and in so far as he is a minis-
ter for evil to the subject, and ruleth not ac-
cording to that which the book of the law
commandeth him as king, in so far he is not
by God appointed king and ruler, and so
must be made a king by God conditionally ;
but so hath God made kings and rulers,
Bom. xiii. 4 ; 2 Goran, vi. 16 ; Psal. lxxxix.
30, 31 ; 2 Sam. vii. 12 ; 1 Chron. xxviii. 7
— 9. This argument is not brought to prove
that Jeroboam or Saul leave off to be kings
when they fail in some part of the condi-
tion ; or as if they were not God's vicege-
rents, to be obeyed in things lawful, after
they have gone on in wicked courses ; for
the people consenting to make Saul king,
they give him the crown, pro hac vice, at
his entry absolutely. There is no condition
required in him before they make him king,
but only that he covenant with them to rule
according to God's law. The conditions to
be performed are consequent, and posterior
to his actual coronation and his sitting on
the throne. But the argument presuppos-
eth that which the Lord's word teacheth, to
wit, that the Lord and the people giveth a
crown by one and the same action ; lor God
formally maketh David a king by the princes
and elders of Israel choosing of him to be
their king at Hebron ; and, therefore, see-
ing the people maketh him a king covenant-
wise and conditionally, so he rule according
to God's law, and the people resigning their
power to him for their safety, and for a
peaceable and godly life under him, and not
to destroy them, and tyrannise over them.
It is certain God giveth a king that same
way by that very same act of the people ;
and if the king tyrannise, I cannot say it is
beside the intention of God making a king,
nor yet beside his intention as a just pun-
isher of their transgressions ; for to me, as I
conceive, nothing either good or evil falleth
out beside the intention of Him who " doeth
all things according to the pleasure of his
will." If, then, the people make a king, as
a king, conditionally, for their safety, and not
for their destruction, (for as a king he saveth,
as a man he destroyeth, and not as a kino-
and father,) and if God, by the people's free
election, make a king, God maketh him a
king conditionally, and so by covenant ; and,
therefore, when God promiseth (2 Sam. vii.
58
LEX, REX ; OR,
12 ; 1 Chron. xxviii. 7 — 9) to David's seed,
and to Solomon, a throne, he promiseth not
a throne to them immediately, as he raised
up prophets and apostles without any me-
diate action and consent of the people, but
he promiseth a throne to them by the me-
diate consent, election, and covenant of the
people ; which condition and covenant he
expresseth in the very words of the people's
covenant with the king, " So they walk as
kings in the law of the Lord, and take heed
to God's commandment and statutes to do
them."
Obj. 1. — But then Solomon, falling in
love with many outlandish women, and so
not walking according to God's law, loseth
all royal dignity and kingly power, and the
people is not to acknowledge him as king,
since the kingly power was conferred upon
him rather than Adonijah, upon such a con-
dition, which condition not being performed
by him, it is presumed that neither God,
nor the people under God, as God's instru-
ments in making king, conferred any royal
power on him.
Ans. — It doth not follow that Solomon,
falling in love with strange women, doth lose
royal dignity, either in the court of heaven
or before men ; because the conditions of
the covenant upon which God, by the peo-
ple, made him king must be exponed
by the law, Deut, xvii. Now that cannot
bear that any one act, contrary to the royal
office ; yea, that any one or two acts of
tyranny doth denude a man of the royal
dignity that God and the people gave him ;
for so David, committing two acts of tyran-
ny : one of taking his own faithful subject's
wife from, and another in killing himself,
should denude himself of all the kingly
power that he had ; and that, therefore, the
people, after his adultery and murder, were
not to acknowledge David as their king, —
which is most absurd ; for as one single act
of unchastity is indeed against the matrimo-
nial covenant, and yet doth not make the
woman no wife at all, so it must be such a
breach of the royal covenant as maketh the
king no king, that annulleth the royal cove-
nant, and denudeth the prince of his royal
authority and power, that must be inter-
preted a breach of the oath of God, because
it must be such a breach upon supposition
whereof the people would not have given
the crown, but upon supposition of his de-
structiveness to the commonwealth, they
would never have given to him the crown.
Obj. 2.— Yet at least it will follow that
Saul, after he is rejected of God for disobe-
dience in not destroying the Amalekites, as
Samuel speaketh to him, (1 Sam. xv.) is no
longer to be acknowledged king by the peo~
pie, at least after he committeth such acts of
tyranny, as are 1 Sam. xviii. 12 — 15, &c. ;
and after he had killed the priests of the
Lord and persecuted innocent David, with-
out cause, he was no longer, either in the
court of heaven or the court of men, to be
acknowledged as king, seeing he had ma»
nifestly violated the royal covenant made
with the people; (1 Sam. xi. 14, 15,) and
yet, after those breaches, David acknowledge
eth him to be his prince and the Lord's
anointed
Ans. 1. — The prophet Samuel's threat-
ening, (1 Sam. xvii.) is not exponed of ac-
tual unkinging and rejecting of Saul at the
present ; for after that, Samuel both hon-
oured him as king before the people and
prayed for him, and mourned to God on his
behalf as king, (1 Sam. xvi. 1, 2,) but the
threatening was to have effect in God's time,
when he should bring David to the throne,
as was prophesied, upon occasion of less sin,
even his sacrificing and not waiting the time
appointed, as God had commanded, 1 Sam.
xiii. 13, 14. 2. The people and David's
acknowledgment of Saul to be the Lord's
anointed and a king, after he had committed
such acts of tyranny as seem destructive of
the royal covenant, and inconsistent there-
with, cannot prove that Saul was not made
king by the Lord and the people condition-
ally, and that for the people's good and
safety, and not for their destruction ; and
it doth well prove, — (1.) That those acts of
blood and tyranny committed by Saul, were
not done by him as king, or from the prin-
ciple of royal power given to him by God
and the people. (2.) That in these acts
they were not to acknowledge him as king.
(3.) That these acts of blood were contrary
to the covenant that Saul did swear at his
inauguration, and contrary to the conditions
that Saul, in the covenant, took on him to
perform at the making of the royal cove-
nant. (4.) They prove not but the states
who made Saul king might lawfully de-
throne him, and anoint David their king.
But David had reason to hold him for his
prince and the Lord's anointed, so long as
the people recalled not their grant of royal
dignity, as David, or any man, is obliged to
honour him as king whom the people mak-
THE LAW AND THE PRINCE.
59
eth king, though he were a bloodier and
more tyrannous man than Saul. Any ty-
rant standeth in titulo, so long as the peo-
ple and estates who made him king have
not recalled their grant ; so as neither Da-
vid, nor any single man, though six hundred
with him, may unking him or detract obe-
dience from him as king ; so many acts of
disloyalty and breaches of laws in the sub-
jects, though they be contrary to this cove-
nant that the states make with their prince,
doth not make them to be no subjects — and
the covenant mutual standeth thus.
Arg. 3. — 1. If the people, as God's instru-
ments, bestow the benefit of a crown on
their king, upon condition that he will rule
them according to God's word, then is the
king made king by the people conditionally;
but the former is true, therefore so is the
latter. The assumption is proved thus : —
Because to be a king, is to be an adopted
father, tutor, a politic servant and royal
watchman of the state ; and the royal hon-
our and royal maintenance given to him, is
a reward of his labours and a kingly hire.
And this is the apostle's argument, Rom.
xiii. 6, " For this cause pay you tribute also,
[there is the wages] for they are God's mi-
nisters, attending continually upon this very
thing." There is the work. Qui non implet
conditionem a sepromissam, cadit beneficio.
It is confirmed thus: — The people either
maketh the man their prince conditionally;
— (1.) that he rule according to law or abso-
lutely;— (2.) so that he rule according to will
or lust ; — or, (8.) without any vocat trans-
actions at all, but only brevi matin, say,
" Reign thou over us, and, God save the
king ;" and so there be no conditions spoken
on either side ; — or, (4.) the king is obliged
to God for the condition which he promis-
eth by oath to perform toward the people ;
but he is to make no reckoning to the peo-
ple, whether he perform his promise or no ;
tor the people being inferior to him, and he,
solo Deo minor, only next and immediate
to God, the people can have no jus, no law
over him by virtue of any covenant. But
the first standing, we have what we seek ;
the second is contrary to Scripture. He is
not (Deut. xvii. 15, 16) made absolutely a
a king to rule according to his will and lust ;
for " reign thou over us," should have this
meaning — " Come thou and play the tyrant
over us, and let thy lust and will be a law
to us," — which is against natural sense; nor
can the sense and meaning be according to
the third, That the people, without any ex-
press, vocal, and positive covenant, give a
throne to their king to rule as he pleaseth ;
because it is a vain thing for the Prelate
and other Mancipia Aulce, court-bellies, to
say Scotland and England must produce a
written authentic covenant betwixt the first
king and their people, because, say they, it is
the law's word, Do non apparentibus et non
existcntibus eadem lex, that covenant which
appeareth not, it is not ; for in positive cove-
nants that is true, and in such contracts as
are made according to the civil or municipal
laws, or the secondary law of nature. But
the general covenant of nature is presup-
posed in making a king, where there is no
vocal or written covenant. If there be no
conditions betwixt a Christian king and his
people, then those things which are just and
right according to the law of God, and the
rule of God in moulding the first king, are
understood to rule both king and people, as
if they had been written ; and here we pro-
duce our written covenant, Deut. xvii. 15;
Josh. i. 8, 9 ; 2 Chron. xxxi. 32. Because
this is as much against the king as the peo-
ple, and more ; tor if the first king cannot
bring forth his written and authentic tables
to prove that the crown was given to him
and his heirs, and his successors, absolutely
and without any conditions, so as his will
shall be a law, cadit causa, he loseth his
cause (say they). The king is in possession
of the royal power absolutely, without any
condition, and you must put him from his
possession by a law. I answer, This is most
false. (1.) Though he were in mala fide,
and in unjust possession, the law of nature
will warrant the people to repeal their right
and plead for it, in a matter which concern-
eth their heads, lives, and souls. (2.) The
parliaments of both kingdoms standing in
possession of a nomothetic power to make
laws, proveth clearly that the king is in no
possession of any royal dignity conferred ab-
solutely, and without any condition, upon
him ; and, therefore, it is the king's part by
law to put the estates out of possession ; and
though there were no written covenant, the
standing law and practice of many hundred
acts of parliament, is equivalent to a written
covenant.
2. When the people appointed any to be
their king, the voice of nature exponeth their
deed, though there be no vocal or written
covenant ; for that fact — of making a king
— is a moral lawful act warranted by the
60
m:x, rex ; or,
word of God (Deut. xvii. 15, 16 ; Rom.
xiii. 1, 2) and the law of nature; and, there-
fore, they having made such a man their
kini;;, they have given him power to be their
father, feeder, healer, and protector ; and
so must only have made him king condi-
tionally, so he be a father, a feeder, and tu-
tor. Now, if this deed of making a king
must be exponed to be an investing with an
absolute, and not a conditional power, this
fact shall be contrary to Scripture and to
the law of nature ; for if they have given
him royal power absolutely, and without any
condition, they must have given to him power
to be a father, protector, tutor, and to be a
tyrant, a murderer, a bloody lion, to waste
and destroy the people of God.
3. The law permitteth the bestower of a
benefit to interpret his own mind in the be-
stowing of a benefit, even as a king and state
must expone their own commission given to
their ambassador, so must the estates expone
whether they bestowed the crown upon the
first king conditionally or absolutely.
4. If it stand, then must the people give
to their first elected king a power to waste
and destroy themselves, so as they may never
control it, but only leave it to God and the
king to reckon together, but so the condi-
tion is a chimera. " We give you a throne,
upon condition you swear by Him who made
heaven and earth, that you will govern us
according to God's law ; and you shall be
answerable to God only, not to us, whether
you keep the covenant you make with us, or
violate it." But how a covenant can be
made with the people, and the king obliged
to God, not to the people, I conceive not.
Tins presupposeth that the king, as king,
cannot do any sin, or commit any act of ty-
ranny against the people, but against God
only ; because if he be obliged to God only
as a king, by virtue of his covenant, how can
he fail against an obligation where there is
no obligation ? But, as a king, he oweth no
obligation of duty to the people ; and in-
deed so do our good men expound Psal. li.,
" Against thee, thee only have I sinned,"
not "against Uriah ; for if he sinned not
as king against Uriah, whose life he was
obliged to preserve as a king, he was not
obliged as a king by any royal duty to pre-
serve his life. Where there is no sin, there
is no obligation not to sin ; and where there
is no obligation not to sin, there is no sin.
By this the king, as king, is loosed from all
duties of the second table, bein<r once made
a king, he is above all obligation to love his
neighbour as himself ; for he is above all his
neighbours, and above all mankind, and only
less than God.
Arg. 4. — If the people be so given to the
king, that they are committed to him as a
pledge, oppignerated in his hand as a pupil
to a tutor, as a distressed man to a patron,
as a flock to a shepherd ; and so they remain
the Lord's church, his people, his flock, his
portion, his inheritance, his vineyard, his re-
deemed ones, then they cannot be given to the
king as oxen and sheep, that are freely gifted
to a man ; or as a gift or sum of gold or silver
that the man to whom they are given may
use, so that he cannot commit a fault against
the oxen, sheep, gold, or money that is given
to him, however -he shall dispose of them.
But the people are given to the king to be
tutored and protected of him, so as they re-
main the people of God, and in covenant with
him ; and if the people were the goods of for-
tune (as heathens say), he could no more sin
against the people than a man can sin against
his gold ; now, though a man by adoring
gold, or by lavish profusion and wasting of
gold, may sin against God, yet not against
gold ; nor can he be in any covenant with
gold, or under any obligation of either duty
or sin to gold, or to lifeless and reasonless
creatures properly, therefore he may sin in
the use of them, and yet not sin against them,
but against God. Hence, of necessity, the
king must be under obligation to the Lord's
people in another maimer than that he
should only answer to God for the loss of men,
as if men were worldly goods under his hand,
and as if being a king he were now by this
royal authority privileged from the best half
of the law of nature, to wit, from acts of mercy
and truth, and covenant-keeping with his
brethren.
Arg. 5. — If a king, because a king, were
privileged from all covenant obligation to his
subjects, then could no law of men lawfully
reach him for any contract violated by him ;
then he could not be a debtor to his subjects
if he borrowed money from them ; and it
were utterly unlawful either to crave him
money, or to sue him at law for debts ; yet
our civil laws of Scotland tyeth the king to
pay his debts, as any other man : yea, and
king Solomon trafficing, and buying, and
selling betwixt him and his own subjects,
woidd seem unlawful ; for how can a king-
buy and sell with his subjects, if he be under
no covenant obligation to men, but to God
THE LAW AXD THE PRINCE.
61
only. Yea, then, a king could not marry a
wile, for he could not come under a cove-
nant to keep his body to her only, nor if he
committed adultery, could he sin against his
wife, because being immediate unto God, and
above all obligation to men, he could sin a-
gainst no covenant made with men, but only
against God.
Arg. 6. — If that was a lawful covenant
made by Asa, and the states of Judah, 2
Chron. 15, 13, " That whosoever would not
seek the Lord God of their fathers, should
be put to death, whether small or great,
whether man or woman," this obligeth the
king, for ought I see, and the princes, and
the people, but it was a lawful covenant ;
therefore the king is under a covenant to the
princes and judges, as they are to him ; it
is replied by Barclaius : " If a master of a
school should make a law, Whosoever shall
go out at the school doors without liberty
obtained of the master, shall be whipped, it
will not oblige the schoolmaster that he shall
be whipped if he go out at the school doors
without liberty ; so neither doth this law
oblige the king, the supreme lawgiver."
Ans. 1. — Suppose that the scholars have
no less hand and authority magisterial in
making the law than the schoolmaster, as
the princes of Judah had a collateral power
with king Asa about that law, it would fol-
low, that the schoolmaster is under the same
law. 2. Suppose going out at school doors,
were that way a moral neglect of studying
in the master, as it is in the scholars, as
the not seeking of God is as heinous a sin in
king Asa, and no less deserving death, than
it is in the people, then should the law ob-
lige schoolmaster and scholar both without
exception. 3. The schoolmaster is clearly
above all laws of discipline which he impos-
eth on his scholars ; but none can say that
king Asa was clearly above that law of seek-
ing of the Lord God of his fathers. Diodo-
rus Siculus (1. 17), saith, the kings of Persia
were under an oath, and that they might not
change the laws ; and so were the kings of
Egypt and Ethiopia. The kings of Sparta,
which Aristotle calleth just kings, renew their
oath every month. Romulus so covenanted
with the senate and people. Carolus V. Aus-
triacus sweareth he shall not change the laws
without the consent of the electors, nor make
new laws, nor dispose or pledge any thing
that belongeth to the empire. So read we
Spec. Saxon, lib. 3, act. 54, and Xenophon
(Cy roped, lib. 8,) saith there was a covenant
between Cyrus and the Persians. The no-
bles are crowned when they crown their king,
and exact a special oath of the king. So
doth England, Poland, Spain, Arragonia,&c.
Alber. Gentilis,1 and Grotius,2 prove that
kings are really bound to perform oaths and
contracts to their people ; but " notwith-
standing there be such a covenant, it follow-
eth not from this, (saith Arniseeus)3 that if
the prince break his covenant and rule ty-
rannically, the people shall be free, and the
contract or covenant nothing." — Ans. The
covenant may be materially broken, while
the king remaineth king, and the subjects
remain subjects ; but when it is both mate-
rially and formally declared by the states to
be broken, the people must be free from their
allegiance ; but of this more hereafter.
Arg. 7. — If a master bind himself by an
oath to his servant, he shall not receive such
a benefit of such a point of service ; if he vio-
late the oath, his oath must give his servant
law and right both to challenge his master,
and to be free from that point of service ; an
army appointeth such a one their leader and
captain, but they refuse to do it except he '
swear he shall not betray them to the ene-
my. If he doth betray them, then must the
soldiers be loosed from that contract. If one
be appointed pilate of a ship, and not but by
an oath, if he sell the passengers to the Turks,
they may challenge the pilate of his oath :
and it is clear that (1.) the estates should re-
fuse the crown to him who would refuse to
govern them according to God's law, but
should profess that he would make his own
will a law, therefore the intention of the oath
is clearly conditional. (2.) When the kin:',
sweareth the oath, he is but king in fieri, and
so not as king above the states of kingdoms.
Now his being king doth not put him in a
case above all civil obligation of a king to his
subjects, because the matter of the oath is,
that he shall be under them so far in regard
of the oath of God.
Arg. 8. — If the oath of God made to the
people do not bind him to the people to go-
vern according to law, and not according to
his will and lust, it should be unlawful for any
to swear such an oath, for if a power above
law agree essentially to a king as a king, as
royalists hold, he who sweareth such an oath
i Alber. Gentilis in disput. Regal, lib. 2, c. 12,
lib. 3, c. 14-16.
2 Hugo Grotius de jure belli et poc. lib. 2,
c. 11-13.
3 Arnisseus de authoritate princip. c. 1, n. 7, 8, 10.
62
LEX, REX ; OR,
should both swear to be a king to such a peo-
ple, and should swear to be no king, in re-
pect by his oath he should renounce that
which is essential to a king.
Arnisaeus objecteth : Ex particularibus
non potest colligi conclusio universalis, some
few of the kings, as David and Joash, made
a covenant with the people ; it followeth not
that this was an universal law. — Ans. Yea,
the covenant is (Deut. 17.) and must be a
rule to all ; if so just a man as David was li-
mited by a covenant, then all the rest also.
QUESTION XV.
WHETHER OR NO THE KING BE UNTVOCALLY,
OR ONLY ANALOGICALLY, AND BY PROPOR-
TION, A FATHER.
It is true Aristotle (Polit. 1. 3, c.ll) saith,
that the kingly power is a fatherly power ;
and Justin, (Novell 12, c. 2,)Paterquamvis
legum contemptor, quamvis impius sit, ta-
men pater est. But I do not believe that,
i as royalists say, the kingly power is essen-
, tially and univocally that same with a pa-
ternal or fatherly power ; or that Adam, as
i a father, was as a father and king ; and that
suppose Adam should live in Noah's days,
that by divine institution and without consent
of the kingdoms and communities on earth,
Adam hoc ipso, and for no other reason but
because he was a father, should also be the
universal king, and monarch of the whole
world ; or suppose Adam was living to this
day, that all kings that hath been since, and
now are, held their crowns of him, and had
no more kingly power than inferior judges
in Scotland have, under our sovereign king
Charles, for so all that hath been, and now
are, lawful kings, should be unjust usurpers ;
for if fatherly power be the first and native
power of commanding, it is against nature
that a monarch who is not my lather by ge-
neration, should take that power from me,
and be a king over me and my children.
1. But I assert, first, that though the Word
warrant us to esteem kings fathers, Isa xlix.
23 ; Jud, v. 7 ; Gen. xx. 2, yet are not they
essentially and formally fathers by genera-
tion; Num. xi. 12, " Have I conceived all
this people ? have I begotten them ?" and
yet are they but fathers metaphorically — by
office, because they should care for them
as fathers do for children, and so come under
the name of fathers in the fifth commandment,
and therefore rigorous and cruel rulers are
leopards, and lions, and wolves, Ezek. xxii.
27 ; Zeph. iii. 3. If, then, tyrannous judges
be not essentially and formally leopards and
lions, but only metaphorically, neither can
kings be formally fathers. 2. Not only kings
but all judges are fathers, in defending their
subjects from violence and the sword, and
fighting the Lord's battles for them, and
counselling them. If, therefore, royalists ar-
gue rightly, a king is essentially a father, and
fatherly power and royal power are of the
same essence and nature. As, therefore, he
who is once a father is ever a father, and his
children cannot take up anus against him to
resist him, for that is unnatural and repug-
nant to the fifth commandment ; so he who
is once a king is evermore a king, and it is re-
pugnant to the fifth commandment to resist
him with arms. It is answered, — that the
argument presupposeth that royal power and
fatherly power is one and the same in nature,
whereas they differ in nature, and are only
one by analogy and proportion ; for so pas-
tors of the W ord are called fathers, 1 Cor.
iv. 15, it will not follow, that once a pastor,
evermore a pastor ; and that if therefore pas-
tors turn wolves, and by heretical doctrine
corrupt the flock, they cannot be cast out of
the church. 3. A father, as a father, hath
not power of life and death over his sons, be-
cause, Rom. xiii., by divine institution the
sword is given by God to kings and judges ;
and if Adam had had any such power to kill
his son Cain for the killing of his brother
Abel, it had been given to him by God as a
power politic, different from a fatherly pow-
er ; for a fatherly power is such as formally
to preserve the life of the children, and not
to take away the life ; yea, and Adam, though
he had never sinned, nor any of his posterity,
Adam should have been a perfect father, as
he is now indued with all fatherly power that
any father now hath ; yea God should not
have given the sword or power of punishing
ill-doers, since that power should have been
in vain, if there had been no violence, nor
bloodshed, or sin on the earth ; for the pow-
er of the sword and of lawful war, is given to
men now in the state of sin. 4. Fatherly go-
vernment and power is from the bosom and
marrow of that fountain law of nature ; but
royal power is not from the law of nature,
more than is aristocratical or democratical
power. Dr. Feme saith, (part 1, sec. 3, p. 8,)
Monarchy is not jure divino, (I am not of
THE LAW AND THE PRINCE.
63
his mind,) nor yet from the law of nature, but
ductu naturae, by the guidance of nature.
Sure it is from a supervenient command-
ment of God, added to the first law of na-
ture, establishing fatherly power. 5. Chil-
dren having their life and first breathings
of nature from their parents, must be in a
more entire relation from their father than
from their prince. Subjects have not their
being natural, but their civil, politic and
peaceable well-being from their prince. 6.
A father is a father by generation, and
giving the being of nature to children, and
is a natural head and root, without the free
consent and suffrages of his children, and is
essentially a father to one child, as Adam
was to one Cain ; but a prince is a prince by
the free suffrages of a community, and can-
not be a king to one only, and he is the po-
litic head of a civil corporation. 7. A fa-
ther, so long as his children liveth, can never
leave off to be a father, though he were mad
and furious — though he be the most wicked
man on earth. Qui genuit filium non po-
test non genuisse filium, what is once past
cannot, by any power, be not past; a fa-
ther is a father for ever. But by confession
of royalists, as Barclaius, Hugo Grotius, and
Arnisaeus, and others, grant, If a king sell
his subjects by sea or land to other nations,
- — if he turn a furious Nero, he may be de-
throned ; and the power that created the
king under such express conditions, as if the
king violate them by his own consent he shall
be put from the throne — may cease to hold
him king; and if a stronger king conquer
a king and his subjects, royalists say the
conqueror is a lawful king ; and so the con-
quered king must also lawfully come down
from his throne, and turn a lawful captive
sitting in the dust. 8. Learned politicians,
as Bartholomeus Romulus, (Defcns. part 1,
n. 153,J and Joannes de Anania (in c. fin.
de his qui fil. occid. ) teach that "the father
is not obliged to reveal the conspiracy of his
son against his prince ; nor is he more to ac-
cuse his son, than to accuse himself, because
the father loveth the son better than him-
self," (D. Listi quidem. Sect. Fin. quod,
met. caus, et D. L. fin. c. de cura furiosi, )
and certainly a father had rather die in his
own person, as choose to die in his son's, in
whom he affecteth a sort of immortality, in
specie, quando non potest in individuo ;
but a king doth not Love his subjects with a
natural or fatherly love thus ; and if the af-
fections differ, the power which secondeth
the affection, for the conservation either of
being, or well-being, must also differ pro-
portionally.
The P. Prelate (c. 7, p. 87,) objecteth
against us thus, stealing word by word from
Arnisaeus.1 1. When a king is elected so-
vereign to a multitude, he is surrogated in
the place of a common father, Exod. xx.
12, *' Honour thy father." Then, as a na-
tural father receiveth not paternal right,
power, or authority, from his sons, but hath
this from God and the ordinance of nature,
nor can the king have his right from the
community. 2. The maxim of the law is,
Surrogatus gaudet privilegus ejus cui sur-
rogatur, et qui succedit in locum, succedit
in jus. The person surrogated hath all the
privileges that he hath in whose place he
succeedeth ; he who succeedeth to the place
succeedeth to the rights ; the adopted son,
or the bastard who is legitimated and Com-
eth in the place of the lawful born son, com-
eth also in the privileges of the lawful born
son. A prince elected cometh to the full
possession of the majesty of a natural prince
and father, for Modus acquirendi non tol-
lit naturale jus possidendi (saith Arnisaeus,
more fully than the poor Plagiarius), the
manner of acquiring any thing, taketh not
away the natural possession, for however
things be acquired, if the title be just, pos-
session is the law of nations. Then when
the king is chosen in place of the father, as
the father hath a divine right by nature, (so
must the king have that same ;) and seeino-
the right proprietor (saith the pamphleting
Prelate) had his right by God, by nature,
how can it be but howsoever the designa-
tion of the person is from the disordered
community, yet the collation of the power is
from God immediately, and from his sacred
and inviolable ordinance? And what can
be said against the way by which any one
elected obtained his right, for seeing God
doth not now send Samuels or Elishas to
anoint or declare kings, we are, in his ordi-
nary providence, to conceive the designation
of the person is the manifestation of God's
will, called voluntas signi, as the schools
speak, just so as when the church designeth
one to sacred orders.
Ans. 1. — He that is surrogated in the
place of another, due to him by a positive
law of man, he hath law to all the privileges
that he hath in whose place he is surrro-
1 Arnisaeus de potest princip. c. 3, n. 1, 2.
64
LEX, REX ; OR,
gated, that is true. He who is made assig-
nee to an obligation for a sum of money,
hatli all the rights that the principal party
to whom the bond or obligation was made.
He who cometh in the place of a mayor of a
city, of a captain in an army, of a pilot in a
ship, or of a pope, hath all the privileges
and rights that his predecessors had by law.
Jus succedit juri, persona jure predita per-
sonce jure preditce. So the law, so far as
my reading can reach, — who profess myself
a divine ; — but that he who succeedeth to
the place of a father by nature, should en-
joy all the natural rights and privileges of
the person to whom he succeedeth, I believe
the law never dreamed it; for then the
adopted son, coming in place of the natural
son, hath right to the natural affection of
the father. If any should adopt Maxwell
the prelate, should he love him as the pur-
suivant of Crail (Maxwell's father) loved him,
I conceive not. Hath the adopted son his
life, his being, the figure bodily, the man-
ners of the son in whose place he is adop-
ted ; or doth he naturally resemble the fa-
ther as the natural son doth ? The Prelate
did not read this law in any approved jurist,
though he did steal the argument from Ar-
nisseus, and stole the citations of Homer
and Aristotle out of him, with a little meta-
thesis. A natural son is not made a son by
the consent of parents, but he is a son by gen-
eration : so must the adopted son be adopted
without the free consent and grace of the
father adopting: so here the king cometh
in the place of a natural father. But I con-
ceive the law saith not that the elected king
is a king without consent of the subjects, as
a natural father is a father without the con-
sent of his sons. Nor is it a law true, as
" once a father always a father," so once an
elected king always a king, though he sell
his subjects, being induced thereunto by
wicked counsellors. If the king have no
privileges but what the natural father hath,
in whose place he cometh, then, as the na-
tural father, in a free kingdom, hath not
power of life and death over his sons, neither
hath the king power of life and death over
his subjects. This is no law. This maxim
should prove good if the king were essenti-
ally a father by generation and natural pro-
pagation ; but he is only a father metapho-
rically, and by a borrowed speech. A father
non generando, sed pjolitice alendo, tuendo,
regendo, therefore an elected prince cometh
not in the full possession of all the natural
power and rights of a natural father. 2.
The P. Prelate speaketh disgracefully of
the church of God, calling it a disorderly
community, as if he himself were born of
kings, whereas God calleth the king their
shepherd, and the people, " God's flock, in-
heritance and people ;" and they are not a
disorderly body by nature, but by sin ; in
which sense the Prelate may call king,
priest and people, a company of heirs of
God's wrath, except he be an Arminian
still, as once he was. If we are in ordinary
providence now, because we have not Sa-
muels and prophets to anoint kings, to hold
the designation of a person to be king to be
the manifestation of God's will, called vol-
untas signi, is treason, for if Scotland and
England should design Maxwell in the place
of king Charles our native sovereign, (an
odious comparison,) Maxwell should be law-
ful king ; for what is done by God's will,
called by our divines (they have it not from
schoolmen, as the Prelate ignorantly saith)
his signified, will, which is our rule, is done
lawfully. There can be no greater treason
put in print than this.
QUESTION XVI.
WHETHER OR NO A DESPOTICAL ANT) MAS-
TERLY DOMINION OF MEN AND THINGS
AGREE TO THE KING BECAUSE HE IS KING.
I may here dispute whether the king be
lord, having a masterly dominion both over
men and things. But I first discuss shortly
his dominion over his subjects.
It is agreed on by divines, that servitude
is a penal fruit of sin, and against nature. In-
stitutt. de jure personarum, Sect. 1, and F.
de statu hominum. I. libertas ; because all
men are born by nature of equal condition.
Assert. 1 . — The king hath no proper, mas-
terly, or lordly dominion over his subjects ;
his dominion is rather fiduciary and minis-
terial, than masterly.
1. Because royal empire is essentially to
feed, rule, defend, and to govern in peace
and godliness, (1 Tim. ii. 2,) as the father
doth his children; Psal. lxxviii. 71, " He
brought him to feed Jacob his people, and
Israel his inheritance ;" Isa. lv. 4, " I gave
him for a leader and commander to the peo-
ple ;" 2 Sam. v. 2, " Thou shalt feed my
people Israel ;" 2 Sam. v. 2 ; 1 Chron. xi.
THE LAW AND THE PRINCE.
65
2 ; 1 Chron. xvii. 6.) And so it is for the
good of the people, and to bring those oyer
whom he is a feeder and ruler, to such a hap-
py end ; and, as saith Althusius, (polit. c, 1,
n. 13,) and Marius Salomonius, (de princ. c.
2,) it is to take care of the good of those over
whom the ruler is set, and, conservare est,
rem illcesam servare, to keep a thing safe.
But to be a master, and to have a masterly
and lordly power over slaves and servants, is
to make use of servants for the owner's bener
fit, not for the good of the slave, (I. 2, de
leg, I. Scrvus de servit. expert. Dance po-
lit. I. 1, Tolossan. de Rep. I. 1, c. 1, n. 15,
16,) therefore are servants bought and sold
as goods, [jure belli. F, de statu hominum
I. et servorum.)
2. Not to be under governors and magisr
trates is a judgment of God, (Isa. iii. 6, 7 ;
iii. 1 ; Hos, iii. 4; Judg. xix. 1, 2,) but not
to be under a master as slaves are, is a bless-
ing, seeing freedom is a blessing of God,
(John viii. 33 ; Exod. xxir 2, 26, 27 ; Deut.
xv, 12 ;) so he that killeth Goliath, (1 Sam.
xvii. 25,) his father's house shall be free in
Israel. (Jer. xxxiv. 9 ; Acts xxii. 28 ; 1
Cor. ix. 19; Gal, iv. 26, 31.) Therefore the
power of a king cannot be a lordly and mas-
terly power; for then to be under a kingly
power should both be a blessing and a curse,
and just punishment of sin.
3. Subjects are called the servants of the
king, (1 Sam. xv. 2 ; 2 Chron. xiii. 7 ; 1
Kings xii. 7 ; Exod. x. 1, 2 ; Exod. ix. 20,)
but they are not slaves, because (Deut. xvii.
20) they are his brethren : " That the king's
heart be not lifted up against his brethren ;"
and his sons; (Isa. xlix. 23 ;) and the Lord
gave his people a king as a blessing, (1 Kings
x. 9 ; Hos. i. 11 ; Isa. i. 26 ; Jer. xvii. 25,)
" and brought them out of the house of bon-
dage," (Exod, xx, 2,) as out of a place of
misery. And therefore to be the king's ser-
vants in the place cited, is some Qther thing
than to be the king's slaves.
4. The master might in some cases sell the
servant for money, yea for his own gain he
might do it, (Nehem. v. 8 ; Eccles. ii. 7 ; 1
Kings ii. 32 ; Gen. ix. 25 ; Gen. xxvi. 14 ;
2 Kings iv. 1 ; Gen. xx. 14, and might give
away his servants ; and the servants were the
proper goods and riches of the master ; (Ec-
cles. ii. 7 ; Gen. xxx. 43 ; Gen. xx. 14 ; Job
i. 3, 15) ; but the king may not sell his king-
dom or subjects, or give them away for mo-
ney, or any other way ; for royalists grant
that king to be a tyrant, and worthy to be
dethroned, who shall sell his people ; for the
king may not dilapidate the rents of the crown
and give them away to the hurt and preju-
dice of his successors, (/. ult. Sect, scd nostr.
e. Comment, de lege, I. peto, 69, Sect, fra-
trem de lege, 2, I. 32, ultimo, D. T.) and far
less can he lawfully sell men, and give away
a whole kingdom to the hurt of his succes-
sors, for that were to make merchandise of
the living temples of the Holy Ghost ; and
Arnisseus, (de authorit. princip. c. 3, n. 7,)
saith, servitude is prceter naturam, beside
nature ; he might have said, contrary to na-
ture (I. 5, de stat. homin. Sect. 2, Inst, de
jur. perso. c. 3, et Novel. 89) ; but the sub-
jection of subjects is so consonant to nature,
that it is seen in bees and cranes, Therefore
a dominion is defined, a faculty of using of
things to what uses you will. Now a man
hath not this way an absolute dominion over
his beasts, to dispose of them at his will ; for
a good man hath mercy on the life of his
beast, (Prov. xii. 10,) nor hath he dominion
over his goods to use them as he will, because
he may not use them to the damage of the
commonwealth, he may not use them to the
dishonour of God ; and so God and the ma-
gistrate hath laid sQme bound on his domi-
nion. And because the king being made a
king leaveth not off to be a reasonable crea-
ture, he must be under a law, and so his will
and lust cannot be the rule of his power and
dominion, but law and reason must regulate
him. Now if God had given to the king a
dominion over men as reasonable creatures,
his power and dominion which by royalists is
conceived to be above law, should be a rule
to men as reasonable men, which would make
men under kings no better than brute beasts,
for then should subjects exercise acts of rea-
son, not because good and honest, but because
their prince commandeth them so to dp ; and
if this cannot be said, none can be at the dis-
posing of kings in politic acts liable to royal
government, that way that the slave is in his
actions under the dominion of his master.
Obj. 1. — The Prelate objecteth out of
Spalatq, Arnisseus, and Hugo Grotius, (for in
his book there is not one line which is his
own, except his railings ;) " All government
aud superiority in rulers is not primely and
only for the subjects' good ; for some are by
God and nature appointed for the mutual
and inseparable good of the superior and in-
ferior, as in the government of husband and
wife, or father and son ; and in herili domi-
nio, in the government of a lord and his ser-
66
LEX, REX ; OR,
vant, the good and benefit of the servant is
but secondary and consecutively intended, it
is not the principal end, but the external and
adventitious, as the gain that cometh to a
physician is not the proper and internal end
of his art, but followeth only from his practice
of medicine.
Ans. 1. — The Prelate's logic tendeth to
this ; some government tendeth to the mu-
tual good of the superior and inferior, but
royal government is some government, there-
fore, nothing followeth from a major propo-
sition, Ex particulars afirmantc, in prima
figura ; or of two particular propositions. 2.
If it be thus formed, every marital govern-
ment, and every government of the lord and
servant is for the mutual good of the supe-
rior and inferior ; but royal government is
such, therefore the assumption is false, and
cannot be proved, as I shall anon clear.
Obj. 2.— Solomon disposed of Cabul and
gave it to Hiram, therefore a conquered king-
dom is for the good of the conqueror espe-
cially.
Ans. — Solomon's special giving away some
titles to the king of Tyre, being a special act
of a prophet as well as a king, cannot war-
rant the king of England to sell England to
a foreign prince, because William made Eng-
land his own by conquest, which also is a most
false supposition ; and this he stole from Hu-
go Grotius, who condemneth selling of king-
doms.
Obj. 3. — A man may render himself to-
tally under the power of a master without
any conditions ; and why may not the body
of a people do the like ? even to have peace
and safety, surrender themselves fully to the
power of a king ? A lord of great manors
may admit no man to live in his lands but
upon a condition of a full surrender of him
and his posterity to that lord. Tacitus shew-
eth us it was so anciently amongst the Ger-
mans : those engaged in the campaigns sur-
rendered themselves fully to the Komans.
Ans. — What compelled people may do to
redeem their lives, with loss of liberty, is
nothing to the point ; such a violent conque-
ror who will be a father and a husband to a
people, against their will, is not their lawful
king ; and that they may sell the liberty of
their posterity, not yet born, is utterly de-
nied as unlawful ; yea, a violentated father to
me is a father, and not a father, and the pos-
terity may vindicate their own liberty given
away unjustly, before they were born, Qua
omne rcgnum vi partum potest vi dissolvi.
Obj. 4.— But (saith Dr Feme) these
which are ours, and given away to another,
in which there redoundeth to God by dona-
tion a special interest, as in things devoted
to holy uses, though after they be abused,
yet we cannot recal them ; therefore, if the
people be once forced to give away their li-
berty, they cannot recal it, far less if they
willingly resign it to then- prince.
Ans. — 1. This is not true, when the power
is given for the conservation of the kingdom,
and is abused for the destruction thereof; for
a power to destruction was never given, nor
can it, by rational nature, be given. Morti-
fications given to religious uses by a positive
law, may be recalled by a more divine and
stronger law of nature, such as this, — " I
will have mercy and not sacrifice." Sup-
pose David, of his own proper heritage, had
given the shew-bread to the priests; yet,
when David and his men are famishing, he
may take it back from them against their
will. Suppose Christ had bought the ears
of corn, and dedicated them to the altar, yet
might he and his disciples eat them in their
hunger. The vessels of silver, dedicated to
the church, may be taken and bestowed on
wounded soldiers. 2. A people free may
not, and ought not, totally surrender their
liberty to a prince, confiding on his good-
ness. (1.) Because liberty is a condition of
nature that all men are born with, and they
are not to give it away — no, not to a king,
except in part and for the better, that they
may have peace and justice for it, which is
better for them, hie et nunc. (2.) If a peo-
ple, trusting in the goodness of their prince,
enslave themselves to him, and he shall
after turn tyrant, a rash and temerarious
surrender obligeth not, Et ignorantia facit
factum quasi involuntarium. Ignorance
maketh the fact some way involuntary ; for
if the people had believed that a meek king
would have turned a roaring lion, they should
not have resigned their liberty into his hand ;
and, therefore, the surrender was tacitly con-
ditional to the king as meek, or whom they
believed to be meek, and not to a tyrannous
lord ; and, therefore, when the contract is
made for the utility of the one party, the
law saith, their place is for after wits, that
men may change their mind and resume
their liberty, though, if they had given away
their liberty for money, they cannot recal
it ; and if violence made the surrender of
liberty, here is slavery ; and slaves taken in
war, so soon as they can escape and return
THE LAW AM) THE PRINCE.
<i7
to their own, they are free. ( D. Sect. item,
ea justit. de rerum divin. I. nihil. F. de
rapt. I. 3.) So the learned Ferdin. Vasquez
(illust. 1. 2. c. 82. n. 15.) saith, " The bird that
was taken, and hath escaped, is free." Na-
ture in a forced people, so soon as they can
escape from a violent conqueror, niaketh
them a free people ; and si solo tempore
(saith Ferd. Vasquez, 1. 2. c. 82, n. 6,) jus-
tificatur subjectio, solo tempore facilius
justificabitur liberatio.
Assert. 2. — All the goods of the subjects
belongeth not to the king. I presuppose
that tire division of goods doth not necessa-
rily flow from the law of nature, for God
made man, before the fall, lord of the crea-
tures indefinitely ; but what goods be Pe-
ter's, and not Paul's, we know not. But sup-
posing man's sin, though the light of the sun
and air be common to all, and religious
places be proper to none, yet it is morally
impossible that there should not be a dis-
tinction of mcum et tunm, mine and thine ;
and the decalogue forbidding theft, and co-
veting the wife of another man, (yet is she
the wife of Peter, not of Thomas, by free
election, not by an act of nature's law,) doth
evidence to us, that the division of things is
so far forth (men now being in the state of
sin) of the law of nature, that it hath evi-
dent ground in the law of nations ; and thus
far natural, that the heat that I have from
my own coat and cloak, and the nourishment
from my own meat, are physically incommu-
nicable to any.1 But I hasten to prove the
proposition : — If, 1. I have leave to permit
that, in time of necessity, all things are com-
mon by God's law — a man travelling might
eat grapes in his neighbour's vineyard, though
he was not licensed to carry any way. I
doubt if David, wanting money, was neces-
sitated to pay money for the shew-bread, or
for Goliath's sword, supposing these to be the
very goods of private men, and ordinarily to
be bought and sold. Nature's law in ex-
tremity, for self-preservation, hath rather a
prerogative royal above all laws of nations
and all civil laws, than any mortal king;
and, therefore, by the civil law, all are the
king's, in case of extreme necessity. In this
meaning, any one man is obliged to give all
he hath for the good of the commonwealth,
and so far the good of the king, in as far as
i Quod jure gentium dieitur. F. de justitia et jure,
1. ex hoc. — Quod partim jure civili. Justi. de rerum
divisio. sect, singulorum.
he is head and father of the commonwealth.1
2. All things are the king's, in regard of his
public power to defend all men and their
goods from unjust violence. 3. All are the
king's, in regard of his act of conservation of
goods, for the use of the just owner. 4. All
are the king's in regard of a legal limitation,
in case of a damage offered to the common-
wealth. Justice requireth confiscation of
goods for a fault ; but confiscated goods are
to help the interested commonwealth, and
the king, not as a man (to bestow them on
his children) but as a king. To this we
may refer these called bona caduca et in-
venta, things lost by shipwreck or any other
providence, Ulpian, tit. 19, t. c. de bonis
vacantibus. C. de Thesanro.
Arg. 1. — And the reasons why private
men are just lords and proprietors of their
own goods, are, — 1. Because, by order of
nature, division of goods cometh nearer to
nature's law and necessity than any king or
magistrate in the world ; and because it is
agreeable to nature that every man be
warmed by his own fleece — nourished by
his own meat, therefore, to conserve every
man's goods to the just owner, and to pre-
serve a community from the violence of ra-
pine and theft, a magistrate and king was
devised. So it is clear, men are just owners
of their own goods, by all good order, both
of nature and time, before there be any such
thing as a king or magistrate. Now, if it
be good that every man enjoy his own goods,
as just proprietor thereof, for his own use,
before there be a king, who can be proprie-
tor of his goods ? And a king being given of
God for a blessing, not for any man's hurt
and loss, the king cometh in to preserve a
man's goods, but not to be lord and owner
thereof himself, nor to take from any man
God's right to his own goods.
Arg. 2. — When God created man at the
beginning, he made all the creatures for
man, and made them by the law of nature
the proper possession of man, but then there
was not any king formally as king ; for cer-
tainly Adam was a father before he was a
king, and no man being either born or crea-
ted a king over another man, no more than
the first lion and the first eagle that God
created, were, by the birthright and first
start of creation, by nature the king of all
lions and all eagles to be after created, — no
1 L. item si verberatum. F. de rei vindicat.
plenc. m. lib. Barbarius. F. de offici. praetor.
68
LEX, REX ; OR,
man can, by nature's law, be the owner of
all goods of particular men. And because
the law of nations, founded upon the law of
nature, hath brought in meum et tuum, mine
and thine, as proper to every particular man,
and the introduction of kings cannot over-
turn nature's foundation ; neither civility nor
grace destroyeth but perfecteth nature ; and
if a man be not born a king, because he is a
man, he cannot be born the possessor of my
goods.
Arg. 3. — What is a character and note of
a tyrant, and an oppressing king as a tyrant,
is not the just due of a king as a king ; but
to take the proper goods of subjects, and use
them as his own, is a proper character and
note of a tyrant and oppressor ; therefore the
proposition is evident : A king and a tyrant
are, by way of contradiction, contrary one to
another. The assumption is proved thus : —
Ezek. xlv. 9, 10, " Thus saith the Lord,
Let it suffice you, O princes of Israel: re-
move violence and spoil, and execute judg-
ment and justice ; take away your exactions
from my people, saith the Lord. Ye shall
have just balances, and a just ephah, and a
just bath." If all be the king's, he is not
capable of extortion and rapine. God com-
plaineth of the violence of kings, Micah iii.
1,3," Is it not for you to know judgment ?
who also eat the flesh of my people, and flay
their skins from off them ; and they break
their bones and chop them in pieces; as for
the pot, and as flesh within the chaldron."
(Isa. iii. 14 ; Zeph. iii. 3.) Was it not an
act of tyranny hi king Achab to take the
vineyard of Naboth? and in king Saul (1
Sam. viii. 14) to take the people of God's
" fields and vineyards, and oliveyards, and
give them to his servants ?" Was it a just
fault that Hybreas objected to Antonius, ex-
acting two tributes in one year, that he said,
" If thou must have two tributes in one
year, then make for us two summers and
two harvests in one year ?" This cannot be
just. If all be the king's, the king taketh
but his own.
Arg. 4. — Subjects under a monarch could
not give alms, nor exercise works of charity -,1
for charity must be my own, Isa. lviii. 7,
" Is it not to deal thy bread to the hungry;"
&c; Eccles. xi. 1, " Cast thy bread upon the
waters ;" and the law saith, " It is theft to
1 Species enim fuiti est tie ulimo largiri, et bene-
ficii debitorcm sibi acquirere, L. si pignore, sect.
<le furt.
give of another man's to the poor ;" yea,
the distinction of poor and rich should have
no place under a monarchy, he only should
be rich.
Arg. 5. — When Paul commandeth us to
pay tribute to princes (Rom. xiii. 6) because
they are the ministers of God, he layeth
this ground, that the king hath not all, but
that the subjects are to give to him of their
goods.
Arg. 6. — It is the king's place, by jus-
tice, to preserve every man in his own right,
and under his own fig-tree ; therefore, it is
not the king's house.
Arg. 7. — Even Pharaoh could not make
all the victual of the land his own, while he
had bought it with money ; and every thing
is presumed to be free (allodialis, free land,)
except the king prove that it is bought or
purchased. L. actius, C. de servit. et aqua.
et Joan. And. m. C. F. de ind. et hosti. in
C. minus de jur.
Arg. 8. — If the subjects had no propriety
in their own goods, but all were the prince's
due, then the subject should not be able to
make any contract of buying and selling
without the king, and every subject were in
the case of a slave. Now the law saith, (L.
2. F. de Noxali. act. 1. 2. F. ad legem
aquil.) When he maketh any covenant,
he is not obliged civilly to keep it, because
the condition of a servant; he not being sui
juris, is compared to the state of a beast,
though he be obliged by a natural obliga-
tion, being a rational creature, in regard of
tbe law of nature, L. naturaliter, L. si id
qttod, L. interdum, F. de cond. indebit.
cum aliis. The subject could not, by Solo-
mon, be forbidden to be surety for his friend,
as king Solomon doth counsel, (Prov. vi. 1
— 3 ;) he could not be condemned to bring
on himself poverty by sluggishness, (as Prov.
vi. 6 — 10 ;) nor were he to honour the Lord
with his riches, (as Prov. iii. 9 ;) nor to keep
his covenant, though to his loss, (Psal. xv.
14 ;) nor could he be merciful and lend,
(Psal. xxxvii. 26 ;) nor had he power to
borrow ; nor could he be guilty in not pay-
ing all again. (Psal. xxxvii. 21.) For sub-
jects, under a monarchy, can neither per-
form a duty, nor fail in a duty, in the mat-
ter of goods. If all be the king's, what
power or dominion hath the subject in dis-
posing of his prince's goods ? See more in
Petr. Rebuffus, tract, congruce portionis,
n. 22b, p. 109, 110. Sed quoad domini-
um rerum, fyc.
THE LAW AND THE PRINCE.
QUESTION XVII.
WHETHER OR NOT THE PRINCE HAVE PROPER-
LY A FIDUCIARY AND MINISTERIAL POWER
OF A TUTOR, HUSBAND, PATRON, MINISTER,
HEAD, FATHER OF A FAMILY, NOT OF A
LORD OR DOMINATOR.
That the power of the king is fiduciary,
that is, given to him immediately by God
in trust, royalists deny not ; but we hold
that the trust is put upon the king by the
people. We deny that the people give
themselves to the king as a gift, for what
is freely given cannot be taken again ; but
they gave themselves to the king as a pawn,
and if the pawn be abused, or not Used in
that manner as it was conditioned to be
used, the party in whose hand the pawn is
intrusted, faileth in his trust.
Assert. 1.— The king is more properly a
tutor than a father. 1. Indigency is the
original of tutors — the parents die ; what
then shall become of the orphan and his in-
heritance ? He cannot guide it himself,
therefore nature devised a tutor to supply
the place of a father, and to govern the tu-
tor ; but, with this consideration, the father
is lord of the inheritance, and if he be dis-
tressed, may sell it, that it shall never come
to the son-, and the father, for the bad de-
serving of his son, may disinherit him ; but
the tutor, being but a borrowed father, can-
not sell the inheritance of the pupil, nor can
he, for the pupil's bad deserving, by any do-
minion of justice over the pupil, take away
the inheritance from him, and give it to his
own son. So a community of itself, because
of sin, is a naked society that can but de-
stroy itself, and every one eat the flesh of
his brother • therefore G-od hath appointed a
king or governor, who shall take care of that
community-, rule them in peace, and save all
from reciprocation of mutual acts of violence,
yet so as, because a trust is put on the ruler
of a community which is not his heritage, he
cannot dispose of it as he pleaseth, because
he is not the proper owner of the inheri-
tance. 2. The pupil, when he cometh to
age, may call his tutor to an account for his
administration. I do not acknowledge that
as a truth, which Arnisseus saith, (de au-
thoritate prin. c. 3, n. 5,) " The common-
wealth is always minor and under tutory, be-
cause it alway hath need of a curator and
governor, and can never put away its gover-
nor ; but the pupil may grow to age and
wisdom, so as he may be without all tutors
and can guide himself, and so may call in
question on his tutor ; and the pupil cannot
be his judge, but must stand to the sentence
of a superior judge, and so the people can-
not judge or punish their prince — God must
be judge betwixt them both."
But this is begging the question ; every
comparison halteth. There is no community
but is major in this, that it can appoint its
own tutors ; and though it cannot be without
all rulers, yet it may well be without this or
that prince and ruler, and, therefore, may
resume its power, which it gave conditionally
to the ruler for its own safety and good ; and
in so far as this condition is violated, and
power turned to the destruction of the com-
monwealth, it is to be esteemed as not given ;
and though the people be not a politic judge
in their own cause, yet in case of manifest
oppression, nature can teach them to oppose
defensive violence against offensive. A com-
munity in its politic body is also above any
ruler, and may judge what is manifestly de-
structive to itself.
06/.— The pupil hath not power to ap-
point his own tutor, nor doth he give power
to him ; so neither doth the people give it
to the king.
Ans. — The pupil hath not indeed a for-
mal power to make a tutor, but he hath
virtually a legal power in his father, who
appointeth a tutor for his son ; and the peo-
ple hath virtually all royal power in them,
as in a sort of immortal and eternal foun-
tain, and may create to themselves many
kings.
Assert. 2.— The king's power is not pro-
perly and univocally a marital and husbandly
power, but only analogically. 1. The wife
by nature is the weaker vessel, and inferior
to the man, but the kingdom, as shall be
demonstrated, is superior to the king. 2.
The wife is given as an help to the man, but
by the contrary, the father here is given as
an help and father to the commonwealth,
which is presumed to be the wife. 3. Ma-
rital and husbandly power is natural, though
it be not natural but from free election that
Peter is Ana's husband, and should have
been, though man had never sinned ; but
royal power is a politic constitution, and the
world might have subsisted though aristo-
cracy or democracy had been the only and
perpetual governments. So let the Prelate
glory in his borrowed logic ; he had it from
70
LEX, REX ; OR,
Barclay. " It is not in the power of the
wife to repudiate her husband, though never
so wicked. She is tyed to him for ever, and
may not give to him a bill of divorcement,
as by law the husband might give to her.
If therefore the people swear loyalty to him,
they keep it, though to their hurt." Psal.
xv. — Ans. There is nothing here said, ex-
cept Barclay and the Plagiary prove that
the king's power is properly a husband's
power, which they cannot prove but from a
simile that crooketh. But a king, elected
upon conditions, that if he sell his people he
shall lose his crown, is as essentially a king as
Adam was Eve's husband, and yet, by grant
of parties, the people may never divorce
from such a king, and dethrone him, if he
sell his people ; but a wife may divorce from
her husband, as the argument saith. And
this poor argument the Prelate stole from
Dr Feme (part 2, sect. 3, p. 10, 11). The
keeping of covenant, though to our hurt, is
a penal hurt, and loss of goods, not a moral
hurt, and loss of religion.
Assert. 3. — The king is more properly a
sort of patron, to defend the people, (and
therefore hath no power given either by God
or man to hurt the people,) and a minister,
or public and honourable servant, (Rom.
xiii. 4,) for he is the minister of God to
thee for good. 1. He is the commonwealth's
servant objectively, because all the king's
service, as he is king, is for the good, safety,
peace and salvation of the people, and in
this he is a servant. 2. He is the servant
of the people representatively, in that the
people hath impawned in his hand all their
power to do royal service.
Ob). 1. — He is the servant of God, there-
fore he is not the people's servant, but their
sovereign lord.
Ans. — It followeth not ; because all the
services the king, as king, performeth to
God, are acts of royalty, and acts of royal
service, as terminated on the people, or acts
of their sovereign lord; and this proveth,
that to be their sovereign is to be their ser-
vant and watchman.
Obj. 2. — God maketh a king only, and
the kingly power is in him only, not in the
people.
Ans. 1. — The royal power is only from
God immediately, — immediatione simplicis
constitutionis, et solum a Deo solitudine
primce causae, — by the immediation of sim-
ple constitution, none but God appointed
there should be kings. But, 2. Royal power
is not in God, nor only from God, imme-
diatione applicationis regice dignitatis
ad personam, nee a Deo solum, solitudine
causce applicantis dignitatem, huic, non
Mi, in respect of the applying of royal dig-
nity to this person, not to that.
Obj. 3. — Though royal power were given
to the people, it is not given to the people
as if it were the royal power of the people,
and not the royal power of God, neither is
it any otherwise bestowed on the people but
as on a beam, a channel, an instrument by
which it is derived to others, and so the king
is not the minister or servant of the people.
Ans. — It is not in the people as in the
principal cause ; sure all royal power that way
is only in God ; but it is in the people as in
the instrument, and when the people maketh
David their king at Hebron, in that same
very act, God, by the people using their free
suffrages and consent, maketh David king at
Hebron ; so God only giveth rain, and none
of the vanities and supposed gods of the Gen-
tiles can give rain, (Jer. xiv. 22,) and yet
the clouds also give rain, as nature, as an or-
gan and vessel out of which God poureth
down rain upon the dry earth ; (Amos ix.
6 ;) and every instrument under God that is
properly an instrument, is a sort of vicarious
cause in God's room, and so the people as in
God's room applieth royal power to David,
not to any of Saul's sons, and appointeth Da-
vid to be their royal servant to govern, and
in that to serve God, and to do that which a
community now in the state of sin cannot for-
mally do themselves ; and so I see not how
it is a service to the people, not only objec-
tively, because the king's royal service tend-
eth to the good, and peace, and safety of the
people, but also subjectively, in regard he
hath his power and royal authority which he
exerciseth as king from the people under
God, as God's instruments ; and, therefore,
the king and parliament give out laws and
statutes in the name of the whole people of
the land ; and they are but flatterers, and
belie the Holy Ghost, who teach that the
people do not make the king ; for Israel made
Saul king at Mizpeh, and Israel made David
king at Hebron.
Obj. 4. — Israel made David king, that
is, Israel designed David's person to be king,
and Israel consented to God's act of making
David king, but they did not make David
king.
Ans. — I say not that Israel made the roy-
al dignity of kings : God (Deut. xvii.) insti-
THE LAW AND THE PRINCE.
71
tutcd that himself; but the royalist must give
us an act of God going before an act of the
people's making David king at Hebron, by
which David of no king is made formally a
king ; and then another act of the people,
approving only and consenting to that act of
God, whereby David is made formally of no
king to be a king. This royalists shall never
instruct, for there be only two acts of God
here ; 1. God's act of anointing David by the
hand of Samuel ; and 2. God's act of making
David king at Hebron ; and a third they
shall never give. But the former is not that
by which David was essentially and formally
changed from the state of a private subject
and no king, into the state of a public judge
and supreme lord and king ; for (as I have
proved) after this act of anointing of David
king, he was designed only and set apart to
be king in the Lord's fit time ; and after this
anointing, he was no more formally a king
than Doeg or Nabal were kings, but a sub-
ject who called Saul the Lord's anointed and
king, and obeyed him as another subject doth
his king ; but it is certain God by no other act
made David king at Hebron, than by Israel's
act of free electing him to be king and leader
of the Lord's people, as God by no other act
sendeth down rain on the earth, but by his
melting the clouds, and causing rain to tall on
the earth ; and therefore to say Israel made
David king at Hebron, that is, Israel approv-
ed only and consented to a prior act of God's
making David king, is just to say Saul pro-
phecied, that is, Saul consented to a prior act
of the Spirit of God who prophecied ; and
Peter preached, (Acts ii.) that is, Peter ap-
proved and consented to the Holy Ghost's
act of preaching, which to say, is childish.
Assert. 4. — The king is an head of the
commonwealth only metaphorically, by a bor-
rowed speech in a politic sense, because he
ruleth, commandeth, directeth the whole po-
litic body in all their operations and func-
tions. But he is not univocally and essen-
tially the head of the commonwealth. 1.
The very same life in number that is in the
head, is in the members ; there be divers dis-
tinct souls and lives in the king and in his
subjects. 2. The head natural is not made
an head by the free election and consent of
arms, shoulders, legs, toes, fingers, &c. The
king is made king only by the free election
of his people. 3. The natural head, so long-
as the person liveth, is ever the head, and
cannot cease to be a head while it is seated
on the shoulders ; the king, if he sell his |
people's persons and souls, may leave off to
lie a king and head. 4. The head and mem-
bers live together and die together, the king
and the people are not so ; the king may die
and the people live. 5. The natural head
cannot destroy the members and preserve it-
self; but king Nero may waste and destroy
his people. Dr Feme, M. Symmons, the P.
Prelate, when they draw arguments from the
head, do but dream, as the members should
not resist the head. Natural members should
not or cannot resist the head, though the
hand may pull a tooth out of the head, which
is no small violence to the head ; but the
members of a politic body may resist the po-
litic head. This or that king is not the
adequate and total politic head of the com-
monwealth ; and therefore though you cut off
a politic head, there is nothing done against
nature. If you cut off all kings of the royal
fine, and all governors aristocratical, both
king and parliament, this were against na-
ture ; and a commonwealth which would cut
off all governors and all heads, should go
against nature and run to ruin quickly. I
conceive a society of reasonable men cannot
want governors. 6. The natural head com-
municateth life, sense, and motion to the
members, and is the seat of external and in-
ternal senses ; the king is not so.
Assert. 5. — Hence the king is not properly
the head of a family, for, as Tholossa saith
well, (de Rep. 1. 5, c. 5,) Nature hath one in-
tention in making the thumb, another in-
tention in making the whole hand, another
in forming the body ; so there is one inten-
tion of the God of nature in governing of one
man, another in governing a family, another
in governing a city : nor is the thumb king
of all the members ; so domestic government
is not monarchical properly. 1. The mother
hath a parental power as the father hath,
(Prov. iv. 5 ; x. 3 ; xxxi. 17,) so the fifth
commandment saith, " Honour thy father and
thy mother." 2. Domestic government is
natural, monarchical politic. 3. Domestic is
necessary, monarchical is not necessary ; other
government may be as well as it. 4. Do-
mestic is universal, monarchical not so. 5.
Domestic hath its rise from natural instinct
without any farther instruction ; a monarchi-
cal government is not but from election,
choosing one government, not another. Hence
that is a fiduciary power, or a power of trust,
wherein the thing put in trust is not either
his own proper heritage or gift, so as he may
dispose of it as he pleaseth, as men dispose of
72
LEX, REX ;
their goods or heritage. But the king may
not dispose of men as men, as he pleaseth ;
nor of laws as he pleaseth ; nor of governing
men, killing or keeping alive, punishing and
rewarding, as he pleaseth. My life and re-
ligion, and so my soul, in some eases, are com-
mitted to the king as to a public watchman,
even as the flock to the feeder, the city to
the watchmen ; and he may betray it to the
enemy. Therefore, he hath the trust of life
and religion, and hath both tables of the law
in his custody, ex officio, to see that other
men than himself keep the law. But tbe law
is not the king's own, but given to him in
trust. He who receiveth a kingdom condi-
tionally, and may be dethroned if he sell it
or put it away to any other, is a fiduciary pa-
tron, and hath it only in trust. So Hotto-
man, (quest, ill. 1.) Ferdinand. Vasquez,
(Must, quest. LI, & 4.) Althusius, (polk,
c. 24, n. 35,) so saith the law of every factor
or deputy, (1. 40, 1. 63, procur. 1. 16, C. diet.
1.) Antigonus dixit regnum esse nobilem
servitutem. Tyberius Caesar called the ser
nate, dominum suum, his lord. (Suetonius
in vita Tiberii, c. 29.)
QUESTION XVIII.
WHAT IS THE LAW OF THE KING, AND HIS
POWER?
1 Sam. viii. 11. " This rvill be the manner of the king
who shall reign over you," &c.
This place, (1 Sam. viii. 11,) the law or
manner of the king is alleged to prove both
the absolute power of kings, and the unlaw-
fulness of resistance ; therefore I crave leave
here to vindicate the place, and to make it
evident to all that the place speaketh for no
such matter. Grotius argueth thus :x " that
by this place, the people oppressed with in-
juries of a tyi-annous king have nothing left
them but prayers and cries to God ; and
therefore there is no ground for violent re-
sisting." Barclay2 will have us to distinguish
inter officium regis, et potestatem, between
the king's office and the king's power ; and
he will have the Lord here speaking, not of
1 Grotius de jure belli et pacis, lib. 1, c. 4, n. 3.
2 Barclaius contra Monarchom. lib. 2, p. 64. Po-
testatem intelligit non earn quae corapetit ex pras-
cepto, neque etiam quae ex permissu est, quatenus
liberat a peccato, sed quatenus paenis legalibus exi-
mit operantem.
the king's office, what he ought to do before
God, but what power a king hath beside and
above the power of judges, to tyrannise over
the people, so as the people hath no power to
resist it. He will have the office of the king
spoken of Deut. xvii., and the power of the
king, 1 Sam. viii., and that power which the
people was to obey and submit unto without
resisting. But I answer, 1. It is a vain
thing to distinguish betwixt the office and the
power ; for the power is either a power to
rule according to God's law, as he is com?
manded, (Deut. xvii.) and this is the veryofV
fice or official power which the King of kings
hath given to all kings under him, and this
is a power of the royal office of a king, to
govern for the Lord his Maker ; or this is
a power to do ill and tyrannise over God's
people ; but this is accidental to a king and
the character of a tyrant, and is not from
God, and so the law of the king in this place
must be the tyranny of the king, which is our
very mind. 2. " lieges sine dominatione ne
concipi quidem possunt ; — judices domi-
nationem in populum minime habebant."^
Hence it is clear that Barclay saith, that
the judges of Israel and the kings are
different in essence and nature ; so that do-
mination is so essential to a king, that you
cannot conceive a king but he must have
domination, whereas the judges of Israel
had no domination over the people. Hence
I argue, that whereby a king is essentially
distinguished from a judge that must be
from God ; but by domination, which is a
power to oppress the subject, a king is esr
sentially distinguished from a judge qf Is-
rael ; therefore, domination and a power to
do acts of tyranny, as they are expressed,
(ver. 11 — 13,) and to oppress a subject, is
from God, and so must be a lawful power.
But the conclusion is absurd ; the assump-
tion is the doctrine of Barclay. The major
proposition I prove. 1. Because both the
judge and the king was from God ; for God
gave Moses a lawful calling to be a judge,
so did he to Eli and to Samuel, and hence
(Deut. xvii, 15) the king is a lawful ordi-
nance of God. If then the judge and the
king be both lawful ordinances, and if they
differ essentially, as Barclay saith, then
that specific form which distinguished! the
one from the other, to wit, domination and
a power to destroy the subject, must be
from God ; which is blasphemous : for God
3 Barclaius contra Monarcho. lib. 2. p. 56, 57.
THE LAW AND THE PRINCE.
can give no moral power to do wickedly ; for
that is licence, and a power to sin against
a law of God, which is absolutely inconsis-
tent with the holiness of God ; for so the
Lord might deny himself, and dispense with
sin. God avert such blasphemies ! 2. Now
if the kingly power be from God, that which
essentially and specifically constituteth a
king must be from God, as the office itself
is from God. Barclay saith^ expressly that
the kingly power is from God, and that
same, which is the specific form that con-
stituteth a king, must be that which essen-
tially separateth the king from the judge,
if they be essentially different, as Barclay
dreameth. Hence have we this jus reals,
this manner or law of the king to tyrannise
and oppress, to be a power from God, and
so a lawful power, by which you shall have
this result of Barclay's interpretation, — that
God made a tyrant as well as a king. 3,
By this difference that Barclay putteth be-
twixt the king and the judge, the judge
might be resisted ; for he had not this power
of domination that Saul hath, contrary to
Rom. xiij. 2 ; Exod, xxii. 28 ; xx, 12.
But let us try the text first, "lyOH
DBii^Q the word cannot enforce us to ex-
pone CDDJ^D a law, our English rendereth,
Show them the manner of the king. Arri.
Montanus turneth it ratio regis.2 I grant
the LXX. render it, ™ hzaivpa rtfi jG«<n'Asa>f .3
The Chaldee Paraphrase saith,* Statutum
regis. Hieronimus translateth it jus regis,
and also Calvin ; but I am sure the He-
brew, both in words and sense, beareth a
consuetude ; yea, and the word JODJ^D sig-
nifieth not always a law, as, (Josh. vi. 14,)
" They compassed the city IDSt^^DD seven
times : the IjXX. Ktf.ro. r.iv y^'iixa. rovri ', 2
Kings xvii. 26, They " know not the man-
ner of the God of the land ; (ver. 33) they
served their own gods, after the manner of
the heathen." DVTil tDSt^DD can-
not be according to the law or right of the
heathen, except £3D^D> be taken in an
evil part : the LXX. Kara re, Kfifta rZ/ \hm,
ver. 34, " Until this day they do after these
manners ;" 1 Kings xviii. 28, Baal's priests
" cut themselves with knives OtDS^DD
after their manner :" the LXX. Kara. ™\
itutit.it ; Gen. xl. 13, Thou shalt give the
cup to Pharaoh, according as thou wast
i Barclaius, lib. 3, c. 2.
2 Arr. Mon. Haec erit ratio Regis.
3 Chald. Para. KPT XDQ1 NOSDI-
wont to do; tDDJJ^D, Exod. xxi. 9, "He
shall deal with her after the manner of
daughters;" 1 Sam. xxvii. 1\, "And Da-
vid saved neither man nor woman alive, to
bring tidings to Gatli, saying, So did David,
and so will his manner be," V&QWD- It
cannot be they meant that it was David's
law, right, or privilege, to spare none a-
live ; 1 Sam. ii. 13, " And the priests' cus-
tom with the people was," &c. D^POtl
1535^01- This was a wicked custom, not a
law ; and the LXX. turneth it, *«,' rh $/*«/-
afia rcu U£uf ; and therefore hxampa is not al-
ways taken in a good meaning : so P. Mar-
tyr,1 " He meaneth here of an usurped law;"
Calvin,? Non jus a deo preseriptum, seal
tyranidcm, — " He speaketh not of God's
law here, but of tyranny ;" and Rivetus,3
DDJtO signifieth not ever jus, law. Sed
aliquando morem sive modum et rationcm
agendi, — " The custom and manner of do-
ing:" so Junius* and Tremellius. Dioda-
tus^ exponeth jus,— This law, " namely,
(saith he,) that which is now grown to a
common custom, by the consent of nations
and God's toleration." Glossa,6 (to speak
of papists,) Exactioneni ct dominationem,
— " The extortion and domination of king
Saul is here meant ;" Lyra7 exponeth it
tyranny ; Tostatus Abulens.,8 " He mean-
eth here of kings indefinitely who oppressed
tlje people with taxes and tributes, as So-
lomon and others;" Cornelius a Lapide,9
" This was an unjust law;" Cajetanus10 call-
eth it tyranny; Hugo Cardinal, nameth
them, exactiones et servitudes,— fi exactions
and slaveries ;" and Serrarius speaketh not
here, Quid Reges jure possint, — " What
they may do by right and law :" Sed quid
audeant, — " What they will be bold to do,
and what they tyranically decern against
all laws of nature and humanity ;" and so
speaketh Thorn. Aquinas ;u so also Men-
1 P, Martyr, comment. 1 Sam. viii,, verum jus re-
gium desprib'it in Deut. apnd Samuelum autem usur-
patum.
2 Calvin, cone. 1 Sam. viii.
3 Andr. Rivetus in decal., Exod. xx. in 5, mun-
dat., p. 165.
4 Junius annot., in 1 Sam. ii. 13.
5 Diodatus annot., 1 Sam. viii. 3.
6 Glossa interlinearis.
7 Lyra in locum, hie accipitur jus large sumptum
qnod reputatur jus propter malum abusum. Nam
ilia quas dicuntur hie de jure Regis, magis coutin-
gunt per tyranidem.
8 Tostatus Abulens. in 1 Reg. 8, q. 17, de q. 21.
9 Cornelius a Lapide, in locum.
10 Cajetanus, in locum.
» Thorn. Aquinas, L 3, de Regni Princip. c. I}.
M
LEX, REX ; OR,
doza1 speaketh of the "law of tyrants;"
and, amongst the fathers, Clemens Alexan-
drinus saith on this place, Non humanum
pollicetur dominium, sed insolentem datn-
rum minatur tyrannum, — " He promiseth
not a humane prince, but threateneth to give
them an insolent tyrant ;" and the like also
saith Bede ;3 and an excellent lawyer, Pet.
Rebuffus saith,4 Etiam loquitur de tyran-
no qui non crat a Deo electus, and that he
speaketh of Saul's tyrannical usurpation, and
not of the law prescribed by God, Deut.
xvii., I prove, — 1. He speaketh of such a
power as is answerable to the acts here
spoken of ; but the acts here spoken of are
acts of mere tyranny; ver. 11, "And this
will be the manner of your king that shall
reign over you : he will take your sons, and
appoint them for himself, for his chariots,
and to be his horsemen ; and some shall
run before his chariots." Now, to make
slaves of their sons was an act of tyranny.
2. To take their fields, and vineyards, and
oliveyards from them, and give them to his
servants, was no better than Ahab's taking
Naboth's vineyard from him, which by God's
law he might not lawfully sell, except in the
case of extreme poverty, and then, in the
year of jubilee, he might "redeem his own
inheritance. 3.' (Ver. 15, 16,) To put the
people of God to bondage, and make them
servants, was to deal with them as the ty-
rant Pharaoh did. 4. He speaketh of such
a law, the execution whereof should " make
them cry out to the Lord because of their
king ;" but the execution of the just law of
the king (Deut. xvii.) is a blessing, and not
a bondage which should make the people cry
out of the bitterness of their spirit. 5. It is
clear here that God is, by his prophet, not
instructing the king in his duty, but, as
Rabbi Levi Ben. Gersom. saith,4 " Terrify-
ing them from their purpose of seeking a
king, and foretelling the evil of punishment
that they should suffer under a tyrannous
king;" but he speaketh not one word of
these necessary and comfortable acts of fa-
vour that a good king, by his good govern-
1 Mendoza, jus Tyrannorum.
2 Clemens Alexand. p. 26.
3 Beda, 1. 2, expo, in Samuel.
4 Pet. Rebuffus tract, de incongrua. prert. p. 110.
5 Ben. Gersom. in 1 Sam. viii., Pezelius in rxp.
leg. Mosai. 1.4, c. 8. Tossan. in not. Bibl. Bosseus
de Rep. Christ, potest, supra regem, c. 2, n, 103.
Bodin. de Rep. 1. 1, c. 19. Brentius, homil. 27, in
1 Sam. viii., Mos regis non de jure, sed de vulgatam
consuetudine.
ment, was to do for his people. Deut. xvii.
15, 16. But he speaketh of contrary facts
here ; and that he is dissuading them from
suiting a king is clear from the text. (1.)
Because he saith, Give them their will ; but
yet protest against their unlawful course.
(2.) He biddeth the prophet lay before
them the tyranny and oppression of their
king; which tyranny Saul exercised in his
time, as the story showeth. (3.) Because
how ineffectual Samuel's exhortation was
is set down, ver. 19, " Nevertheless they
would not obey the voice of Samuel, but
said, Nay, but we will have a king over us."
If Samuel had not been dehorting them
from a king, how could they be said in this
to refuse to hear the voice of Samuel ? 6.
The ground of Barclay and royalists here is
weak ; for they say, That the people sought
a king like the nations, and the kings of the
nations were all absolute, and so tyrants;
and God granted their unlawful desire, and
gave them a tyrant to reign over them such
as the nations had.1 The plain contrary is
true. They sought not a tyrant ; but one
of the special reasons why they sought a
king was to be freed of tyranny ; for 1 Sam.
viii. 3, " Because Samuel's sons turned aside
alter lucre, and took bribes, and perverted
judgment ; therefore all the elders of Israel
gathered themselves together, and came to
Samuel, to Ramah, and there they sought
a king." 7. One could not more clearly
speak with the mouth of a false prophet
than the author of " Active and Passive
Obedience" doth, while he will have Samuel
here to describe a king, and to say, " Ye
have formerly committed one error in shak-
ing off the yoke of God, and seeking a king;
so now beware you fall not in the next error,
in casting off the yoke of a king, which God,
at your own desire, hath laid on you ; for
God only hath power to make and 'unmake
kings ; therefore prepare yourselves patient-
ly to suffer and bear.
Ans. 1. — For if he were exhorting to
patient suffering of the yoke of a king, he
should presume it were God's revealed and
regulating will that they should have a king.
But the scope of Samuel's sermon is to dis-
suade them from a king, and they by the
contrary, (ver. 19,) say, " Nay, but we will
have a king;" and there is not one word
in the text that may intimate patience un-
der the yoke of a king. 2. There is here
1 Dr Forne, sect. 2, p. 55.
THE LAW AND THE PRINCE.
75
the description of a tyrant, not of a king.
3. Here is a threatening and a prediction,
not anything that smelleth of an exhortation.
Obj. — But it is evident that God, teach-
ing the people how to behave themselves
under the unjust oppressions of their king,
set down no remedy but tears, crying to
God, and patience; therefore resistance is
not lawful.1
Ans. — Though this be not the place due
to the doctrine of resistance, yet, to vindi-
cate the place, — 1. I say, there is not one
word of any lawful remedy in the text ;
only it is said, Kin!"! DV2 DnpVH
D^SO 'JS/D, Et clamatis in ilia die
afacicbus regis vestri. It is not necessari-
ly to be exponed of praying to God ; Job
xxxv. 9, " By reason of the multitude of
oppressions, they make the oppressed to
cry," 1p'J7n elamare faeiunt; Isa. xv.
4, "And Heshbon shall cry: pyTDI
the armed soldiers of Moab shall cry out."
There is no other word here than doth ex-
press the idolatrous prayers of Moab ; Isa.
xvii. 12 ; Hab. ii. 11, " The stone shall cry
out of the wall p^TH ;" Deut.. xxii. 24,
" You shall stone the maid "^7 "lJ^ft
"!DT"?y, because she cried not HpW ;"
but she is not to be stoned because she
prayed not to God ; Psal. xviii. 4, " Da-
vid's enemies cried, and there was none to
save, even to the Lord, and he heard not."
2. Though it were the prophet's meaning,
" they cried to the Lord," yet it is not the
crying of a people humbled, and, in faith,
speaking to God in their troubles ; Zech. vii.
13, " They cried, and I would not hear;"
therefore royalists must make crying to God
out of the bitterness of affliction, without
humiliation and faith, and such prayers of
sinners as God heareth not, (Psal. xviii. 41 ;
John ix. 31 ; Isa. xvii. 12,) to be the only
remedy of a people oppressed by a tyran-
nous king. Now, it is certain God pre-
scribeth no unlawful means to an oppressed
people under their affliction ; therefore it is
clear here that God speaketh only of evils
of punishment, such as is to cry in trouble
i Dr Ferne, part 3, sect. 2, p. 10.
1 Learned authors teach that God's law, (Deut.
xvii.,) and the JJ^SJ^Q a wanner of the king, (1
Sam. viii. 9,) are opposite one to another, so Ger-
som. in trinprinc. sac. adu. lat. par. 4, Alp. 66, lit.
1. cons. 8, Buchan. de jure regni apud .Scot. Chas-
son. cat. glo. raundi cons. 24, n. 162, cons. 35. Tho-
loss. 1. 9, c. 1. Rosseu. dc polus, Rep. c. 2, n. 10.
Magdeburg, in trac. de off. ma.
and not be heard of God, and that he pre-
scribeth here no duty at all, nor any re-
medy. 3. All protestant divines say, Ex
particulari -non valet argumentum nega-
tive,— " From one particular place, a nega-
tive argument is not good." This remedy
is not written in this particular place, there-
fore it is not written at all in other places
of Scripture; so 1 Tim. i. 19, the end of
excommunication is, that the party excom-
municated may learn not to blaspheme ;
therefore the end is not also that the church
be not infected. It followeth not. The
contrary is clear (1 Cor. v. 6). Dr Feme,
and other royalists, teach us that we may
supplicate and make prayers to a tyrannous
king. We may fly from a tyrannous king ;
but neither supplicating the king, nor flying
from his fury, shall be lawful means left by
this argument ; because these means are no
more in this text (where royalists say the
Spirit of God speaketh of purpose of the
means to be used against tyranny) than vio-
lent resistance is in this text.
Barclay, Ferne, Grotius, Arnisa?us, the P.
Prelate following them, saith, " An ill king-
is a punishment of God for the sins of the
de,
people, and there is no remedy but patient
suffering."
Ans. — Truly it is a silly argument. The
Assyrians coming against the people of God
for their sins, is a punishment of God. (Isa.
x. 5 ; xii. 13.) But doth it follow that it is
unlawful for Israel to fight and resist the
Assyrians, and that they had warrant to do
no other thing but lay down arms and pray
to God, and fight none at all ? Is there
no lawful resisting of ills of punishment, but
mere prayers and patience ? The Amale-
kites came out against Israel for their sins,
Sennacherib against Hezekiah for the sins of
the people ; Asa's enemies fought against him
for his sins, and the people's sins. Shall Mo-
ses and the people, Hezekiah and Asa, do
then nothing but pray and suffer? Is it unlaw-
ful with the sword to resist them ? I believe
not. Famine is often a punishment of God in
a land, (Amos iv. 7, 8,) is it therefore in fa-
mine unlawful to till the earth, and seek
bread by our industry, and are we to do no-
thing but to pray for dady bread ? It is a
vain argument.
Observe, therefore, the wickedness of Bar-
clay, (contra monarch. 1. 2, p. 56,) for he
would prove, that " a power of doing ill, and
that without any punishment to be Inflicted
by man, is from God ; because our laws pu-
76
lex, ki;x ; OR,
nish not perjury, but leaveth it to be punish-
ed of God (I. 2, i. de Reb. cred. Cujacius, I.
2, obs. c. 19) ; and the husband in the law of
Moses had power td give a bill of divorce to
his wife and send her away, and the husband
was not to be punished. And also stews and
work-houses for harlots, and to take usury,
are tolerated in many Christian common-
wealths, and yet these are all sorts of mur-
ders by the confession of heathen ; therefore,
(saith Barclay,) God may give a power of
tyrannous acts to kings, so as they shall be
under no punishment to be inflicted by men.
Anfr. — All this is an argument from fact.
1 . A wicked magistracy may permit perjury
and lying in the commonwealth, and that
without punishment ; and some Christian
commonwealths, he meaneth his own syna-
gogue of Rome, spiritual Sodom-, a cage of
unclean birds, suft'ereth harlots by law; and
the whores pay so many thousands yearly to
the Pope, and are free of all punishment by
law, to eschew homicides, adulteries of Ro-
mish priests, and other greater sins ; there-
fore God hath given power to a king to play
the tyrant without any fear of punishment to
be inflicted by man. But if this be a good
argument, the magistrate to whom God hath
committed the sword to take vengeance on
evil doers, (Rom. xiii. 3—6,) such as are per-
jured persons, professed whores and harlots,
hath a lawful power from God to connive at
pins and gross scandals in the commonwealth,
as they dream that the king hath power giv-
en from God to exercise all acts of tyranny
without any resistance. But, 1. This was a
grievous sin in Eli, that he being a father and
a judge, punished not his sons for their un-
cleanness, and his house, in God's heavy dis-
pleasure, was cut off from the priesthood
therefor. Then God hath given no such
power to the judge. 2. The contrary duty
is lying on the judge, to execute judgment
for the oppressed, (Job xxix. 12 — 17 ; Jer.
xxii. 15, 16,) and perverting of judgment,
and conniving at the heinous sins of the wick-
ed, is condemned, (Num-. v. 31, 32 ; 1 Sam.
xv. 23 ; 1 Kings xx. 42, 43 ; Isa. i. 17 ; x.
1 ; v. 23,) and therefore God hath given no
power to a judge to permit wicked men to
commit grievous crimes, without any punish-
ment. As for the law of divorce, it was in-
deed a permissive law, whereby the husband
might give the wife a bill of divorce, and be
free of punishment before men, but not free
of sin and guiltiness before God, for it was
contrary to God's institution of marriage at
the beginning, as Christ saith ; and the pro-
phet saith, (Mai. 2,) that the Lord hateth
putting away ; but that God hath given any
such permissive power to the king, that he
may do what he pleaseth, and cannot be re-
sisted, this is in question. 3. The law spoken
of in the text is by royalists called, not a con-
suetude of tyranny, but the divine law of God,
whereby the king is formally and essentially
distinguished from the judge in Israel ; now
if so, a power to sin and a power to commit
acts of tyranny, yea, and a power in the
king's sergeants and bloody emissaries to
waste and destroy the people of God, must
be a lawful power given ot God ; for a law-
ful power it must be if it cometh from God,
whether it be from the king in his own per-
son, or from his servants at his command-
ment, and by either put forth in acts, as the
power of a bill of divorce was a power from
God, exempting either the husband from
punishment before men, or freeing the ser-
vant, who at the husband's command should
write it and put it in the hands of the wo-
man. I cannot believe that God hath given
a power, and that by law, to one man to com-
mand twenty thousand cut -throats to kill and
destroy all the children of God, and that he
hath commanded Ins children to give their
necks and heads to Babel's 6ons without re-
sistance. This I am sure is another matter
than a law for a bill of divorce to one woman
married by free election of a changeable and
unconstant man. But sure I am, God gave
no permissive law from heaven like the law
of divorce, for the hardness of the heart, not
of the Jews only, but also of the whole Chris-
tian and heathen kingdoms under a monarch,
that one emperor may, by such a law of God
as the law of divorce, kill, by bloody cut-
throats, such as the Irish rebels are, all the
nations that call on God's name, men, wo-
men, and sucking infants. And if Provi-
dence impede the catholic issue, and dry up
the seas of blood, it is good ; but God hath
given a law, such as the law of divorce, to
the king, whei-eby he, and all his, may, with-
out resistance, by a legal power given of
God, who giveth kings to be fathers, nurses,
protectors, guides, yea the breath of nostrils
of his church, as special mercies and blessings
to his people, he may, I say, by a law of
God, as it is 1 Sam. viii. 9, 11, cut off na-
tions, as that lion of the world, Nebuchad-
nezzar, did. So royalists teach us.
Barclay saith (1. 2. contra Monarch, p.
69) — The Lord spake to Samuel the law uf
THE LAW AND THE PRINCE.
77
the king, and wrote it in a book, and laid it
up before the Lord, But what laW ? That
same law which he proposed to the people
when they first sought a king. But that was
the law contemning precepts, rather for the
people's obeying than for the king's com-
manding ; for the people was to be instruc-
ted witfi those precepts, not the king. Those
things that concerned the king's duty (Deut.
xvii.) Moses commanded to be put into the
ark ; but so if Samuel had commanded the
king that which Moses (Deut; xvii.) com-
manded, he had done no new thing, but had
done again what was once done actum egis-
set; but there was nothing before command-
ed the people concerning their obedience and
patience under evil princes. Joseph. Antiq.
(1. 6, c. 5,) wrote, va fuxxinrx *cLtx the evils
that were to befall them.
Ans. 1.— It was not that same law, for
though this law was written to the people,
yet it was the law of the king ; and, I pray
you, did Samuel write in a book all the rules
of tyranny, and teach Saul, and all the kings
after him, (for this book was put in the ark
of the covenant, where also was the book
of the law) how to play the tyrant ? And
what instruction was it to king or people to
write to them a book of the wicked ways of a
king, which nature teacheth without a doctor?
Sanctius saith on the place, These things
which, by men's fraud and to the hurt of
the public, may be corrupted-, were kept in
the tabernacle, and the book of the law was
kept in the ark. Cornelius a Lapide saith,
It was the law common to king and people,
which was commonly kept with the book of
the law in the ark of the covenant. Lyra
contradicteth Barclay. He exponeth Le-
gem, legem regni non secundum usurpa-
tionem supra positam, sed secundum ordi-
nationem Dei positam. (Deut. xvii.) Theo-
datius excellently exponeth it, The funda-
mental laws of the kingdom, inspired by God
to temper monarchy with a liberty befitting
God's people, and with equity toward a na-
tion— to withstand the abuse of an absolute
power. 2. Can any believe Samuel would
have written a law of tyranny, and put that
book in the ark of the covenant before the
Lord, to be kept to the posterity, seeing he
was to teach both king and people the good
and the right way, 1 Sami xii. 23 — 25. 3.
Where is the law of the kingdom called a
law of punishing innocent people ? 4; To
write the duty of the king in a book, and
apply it to the king, is no more superfluous
than to teach the people the good and the
right way out of the law, and apply general
laws to particular persons. 5. There is no-
thing in the law (1 Sam. viii. 9 — 12) of the
people's patience, but rather of their impa-
tient crying out, God not hearing nor help-
ing ; and nothing of that in this book, for any
thing that we know, and Josephus speaketh
of the law in 1 Sam. viii., not of this law, 1
Sam. xii.
QUESTION XIX.
WHETHER OR NO THE KING BE IN DIGNITY
AND POWER ABOVE THE PEOPLE.
In this grave question divers considera-
tions are to be pondered. 1. There is a
dignity material in the people scattered —
they being many representations of God and
his image, which is in the king also, and for-
mally more as king, he being endued with
formal magistratical and public royal autho-
rity. In the former regard, this or that
man is inferior to the king, because the
king hath that same remainder of the image
of God- that any private man hath, and
something more — he hath a politic resem-
blance of the King of heavens, being a little
god, and so is above any one man.
2. All these of the people taken collec-
tively having more of God, as being repre-
sentationsj are, according to this material
dignity j more excellent than the king, be-
cause many are more excellent than one ;
and the king, according to the magistratical
and royal authority he hath, is more excel-
lent than they are, because he partaketh
formally of royalty, which they have not for-
mally.
8. A mean or medium, as it is such, is
less than the end, though the thing materi-
ally that is a mean may be more excellent.
Every mean, as a mean, under that redup-
lication, hath all its goodness and excellency
in relation to the end ; yet an angel that is
a mean (or medium) and a ministering spi-
rit, ordained of God for an heir of life eter-
nal, (Heb. i. 13,) considered materially, is
more excellent than a man. (Psal. viii. 5 ;
Heb. ii. 6—8.)
4-. A king and leader j in a military consi-
deration, and as a governor and conserver of
the whole army, is more worth than ten
thousand of the people, 2 Sam. xviii. 13.
78
LEX, REX ; OR,
5. But simply and absolutely the people
is above, and more excellent, than the king,
and the king in dignity inferior to the peo-
ple; and that upon these reasons : —
Arg. 1. — Because he is the mean ordain-
ed for the people, as for the end, that he
may save them, (2 Sam. xix. 9 ;) a public
shepherd to feed them, (Psal. lxxviii. 70 —
73 ;) the captain and leader of the Lord's
inheritance to defend them, (1 Sam. x. 1 ;)
the minister of God for their good. (Rom.
xiii. 4.)
Arg. 2. — The pilot is less than the whole
passengers ; the general less than the whole
army ; the tutor less than all the children ;
the physician less than all the living men
whose health he careth for; the master or
teacher less than all the scholars, because
the part is less than the whole ; the king is
but a part and member (though I grant a
very eminent and noble member) of the
kingdom.
Arg. 3. — A Christian people, especially,
is the portion of the Lord's inheritance,
(Deut. xxxii. 9) the sheep of his pasture —
his redeemed ones — for whom God gave his
blood, Acts xx. 28. And the killing of a
man is to violate the image of God, (Gen.
ix. 6,) and therefore the death and destruc-
tion of a church, and of thousand thousands
of men, is a sadder and a more heavy mat-
ter than the death of a king, who is but one
man.
Arg. 4. — A king as a king, or because a
king, is not the inheritance of God, nor the
chosen and called of God, nor the sheep or
flock of the Lord's pasture, nor the redeem-
ed of Christ, for those excellencies agree not
to kings because they are kings; for then all
kings should be endued with those excellen-
cies, and God should be an acceptor of per-
sons, if he put those excellencies of grace
upon men for external respects of highness
and kingly power, and worldly glory and
splendour ; for many living images and re-
presentations of God, as he is holy, or more
excellent than a politic representation of
God's greatness and majesty, such as the
king is ; because that which is the fruit of a
love of God, which cometh nearer to God's
most special love, is more excellent than that
which is farther remote from his special love.
Now, though royalty be a beam of the ma-
jesty of the greatness of the King of kings
and Lord of lords, yet is it such a fruit and
beam of God's greatness, as may consist with
the eternal reprobation of the party loved ;
so now God's love, from whence he com-
municateth his image representing his own
holiness, cometh nearer to his most special
love of election of men to glory.
Arg. 5. — If God give kings to be a ran-
som for his church, and if he slay great kings
for their sake, as Pharaoh king of Egypt,
(Isa. xliii. 3,) and Sihon king of the Amo-
rites, and Og king of Bashan ; (Psal. cxxxvi.
18 — 20 ;) if he plead with princes and kings
for destroying his people ; (Isa. hi. 12—14;)
if he make Babylon and her king a thresh-
ing-floor, for the " violence done to the in-
habitants of Zion," (Jer. li. 33 — 35,) then
his people, as his people, must be so much
dearer and more precious in the Lord's eyes
than kings, because they are kings ; by how
much more his justice is active to destroy
the one, and his mercy to save the other.
Neither is the argument taken off by say-
ing the king must, in this question, be com-
pared with his own people ; not a foreign
king, with other foreign people, over whom
he doth not reign, for the argument proveth
that the people of God are of more worth
than kings as kings ; and Nebuchadnezzar
and Pharaoh, for the time, were kings to
the people of God, and foreign kings are no
less essentially kings, than kings native are.
Arg. 6.— Those who are given of God as
gifts for the preservation of the people, to be
nurse-fathers to them, those must be of less
worth before God, than those to whom they
are given, since the gift, as the gift, is less
than the party on whom the gift is be-
stowed. But the king is a gift for the good
and preservation of the people, as is clear,
Isa. i. 26 ; and from this, that God gave his
people a king in his wrath, we may con-
clude, that a king of himself, except God be
angry with his people, must be a gift.
Arg. 7- — That which is eternal, and can-
not politically die, yea, which must continue
as the days of heaven, because of God's
promise, is more excellent than that which
is both accidental, temporary, and mortal.
But the people are both eternal as people,
because (Lccles. i. 4) " one generation pass-
eth away, and another generation cometh,"
and as a people in covenant with God, (Jer.
xxxii. 40, 41,) in respect that a people and
church, though mortal in the individuals,
yet the church, remaining the church, can-
not die ; but the king, as king, may and
doth die. It is true, where a kingdom go-
eth by succession, the politicians say, the
man who is king dicth, but the king never
THE LAW AND THE PRINCE.
dieth, because some other, either by birth or
free election, succeedetb. in his room. But
I answer, — 1. People, by a sort of necessity
of nature, succeedetb. to people, generation
to generation, except God's judgment, con-
trary to nature, intervene to make Babylon
no people, and a land that shall never be in-
habited (which I both believe and hope for,
according to God's word of prophesy). But
a king, by a sort of contingency, succeedcth
to kings; for nature doth not ascertain us
there must be kings to the world's end, be-
cause the essence of governors is kept safe
in aristocracy and democracy, though there
were no kings ; and that kings should neces-
sarily have been in the world, if man had
never fallen in sin, I am not, by any cogent
argument, induced to believe. I conceive
there should have been no government but
those of fathers and children, husband and
wife, and (which is improperly government)
some more gifted with supervenient addi-
tions to nature, as gifts and excellencies of
engines. Now on this point Althusius
(polit. c. 38. n. 114) saith, the king, in re-
spect of office, is worthier than the people,
(out this is but an accidental respect,) but
as the king is a man, he is inferior to the
people.
Arg. 8. — He who, by office, is obliged to
expend himself, and to give Ins life for the
safety of the people, must be inferior to the
people. So Christ saith, the life is more
than raiment or food, because both these
give themselves to corruption for man's life ;
so the beasts are inferior to man, because
they die for our life, that they may sustain
our life. And Caiaphas prophesied right,
that it was better that one man die than the
whole nation perish (John xi. 50) ; and in
nature, elements, against their particular in-
clination, defraud themselves of their private
and particular ends, that the commonwealth
of nature may stand ; as heavy elements
ascend, light descend, lest nature should pe-
rish by a vacuity. And the good Shepherd
(John x.) giveth his life for his sheep ; so
both Saul and David were made kings to
fight the Lord's battles, and to expose their
lives to hazard for the safety of the church
and people of God. But the king, by office,
is obliged to expend his life for the safety of
the people of God ; he is obliged to fight the
Lord's battles for them ; to go betwixt the
flock and death, as Paul was willing to be
spent for the church. It may be objected,
Jesus Christ gave himself a ransom for his
church, and his life for the life of the world,
and was a gift given to the world, (John iii.
16 ; iv. 10,) and he was a mean to save us ;
and so, what arguments we have before pro-
duced to prove that the king must be infe-
rior to the people, because he is a ransom,
a mean, a gift, are not conclusive, I answer,
— 1. Consider a mean reduplicatively, and
formaliter, as a mean ; and secondly, as a
mean materially, that is, the thing which is
a mean. 2. Consider that which is only a
mean, and ransom, and gift, and no more ;
and that which, beside that it is a mean, is I
of a higher nature also. So Christ formally
as a mean, giving his temporal life for a i
time, according to the flesh, for the eter-
nal life of all the catholic church, to be
glorified eternally — (not his blessed god-
head and glory, which, as God, he had with
the Father from eternity) — in that respect
Christ hath the relation of a servant, ran-
som, gift, and some inferiority in compari-
son of the church of God ; and his Father's
glory, as a mean, is inferior to the end, but
Christ materially, in eonoreto. Christ is
is not only a mean to save his church, but,
as God (in which consideration he was the
immortal Lord of life) he was more than
a mean, — even the Author, Efficient and
Creator of heaven and earth ; and so there
is no ground to say that he is inferior to
the church, but the absolute head, king, —
the chief of ten thousand; — more in ex-
cellency and worth than ten thousand mil-
lions of possible worlds of men and angels.
But such a consideration cannot befall any
mortal king; because, consider the king ma-
terially as a mortal man, he must be infe-
rior to the whole church, for he is but one,
and so of less worth than the whole church ;
as the thumb, though the strongest of the
finger's, yet it is inferior to the hand, and
far more to the whole body, as any part is
inferior to the whole. Consider the king
reduplicative and formally as king, and by
the official relation he hath, he is no more
then but a royal servant, an official mean
tending, ex officio, to this end, to preserve
the people, to ride and govern them ; and a
gift of God, given by virtue of his office, to
rule the people of God, and so any way in-
ferior to the people.
Arg. 9. — Those who are before the peo-
ple, and may be a people without a king, must
be of more worth than that which is poste-
rior and cannot be a king without them.
For thus, God's self-sufficiency is proved, in
80
LEX, REX ; OR,
that he might be, and eternally was, blessed
for ever, without his creature ; but his crea-
ture cannot subsist in being without him.
Now, the people were a people many years
before there was a government, (save do-
mestic,) and are a people where there is no
king, but only an aristocracy or a democra-
cy ; but the king can be no king without a
people. It is vain that some say, the king
and kingdoms are relatives, and not one is
before another, for it is true in the naked
relation ; so are father and son, master and
servant, Rclata simul natura ; but sure
there is a priority of worth and indepen-
dency, for all that, in the father above the
son, and in the master above the servant,
and so in the people above the king ; take
away the people, and Dionysius is but a poor
schoolmaster.
Arg. 10. — The people in power are su-
perior to the king, because every efficient and
constituent cause is more excellent than the
effect. Every mean is inferior in power to
the end ; (So Jun. Brutus, q. 31. JBucher
I. 1, c, 16. Author Lib. de ofic. Magistr.
q. 6. Hencenius disp. 2, n. 6. Joan Rof-
fensis Epist. de potest, pap. 1. 2, c. 5. Spa-
lato de Repu. Ecclesiast. I. 6, c. 2, n. 3;)
but the people is the efficient and constitu-
ent cause, the king is the effect ; the people
is the end ; both intended of God to save
the people, to be a healer and a physician to
them (Isa. iii. 7) ; and the people appoint
and create the king out of their indigence,
to preserve themselves from mutual vio-
lence. Many things are objected against
this.. That the efficient and constituent
cause is God, and the people are only the
instrumental cause; and Spalato saith, that
the people doth indirectly only give kingly
power, because God, at their act of election,
ordinarily giveth it.
Ans. — 1, The Scripture saith plainly, as
we heard before, the people made kings ;
and if they do, as other second causes pro-
duce their effects, it is all one that God, as
the principal cause, maketh kings, else we
should not argue from the cause to the ef-
fect amongst the creatures. 2. God, by
that same action that the people createth a
king, doth also, by them, as by his instru-
ments, create a king ; and that God doth
not immediately, at the naked presence of
the act of popular election, confer royal dig-
nity on the man, without any action of the
people, as they say, by the church's act of
conferring orders, God doth immediately,
without any act of the church, infuse from
heaven supernatural liabilities on the man,
without any active influence of the church,
is evident by this. 1. The royal power to
make laws with the king, and so a power
eminent in their states representative to go-
vern themselves, is in the people ; for if the
most high acts of royality be in them, why
not the power also ? And so, what need
to fetch a royal power from heaven to be
immediately infused in him, seeing the peo-
ple hath such a power in themselves at
hand ? 2. The people can, and doth, limit
and bind royal power in elected kings,
therefore they have in them royal power
to give to the king. Those who limit power,
can take away so many degrees of royal
power; and those who can take away power,
can give power ; and it is inconceiveable to
say that people can put restraint upon a
power immediately coming from God. If
Christ immediately infused an apostolic spi-
rit into Paul, mortal men cannot take from
him any degrees of that infused spirit; if
Christ infuse a spirit of nine degrees, the
church cannot limit it to six degrees only.
But royalists consent that the people may
choose a Iqng upon such conditions to reign,
as he hath royal power of ten degrees,
whereas his ancestor had by birth a power
of fourteen degrees. 3. It is not intelligi-
ble that the Holy Ghost should give com-
mandment unto the people to make this
man king, (Deut. xvii. 15, 16,) and forbid
them to make that man king, if the peo-
ple had no active influence in making a
king at all ; but God, solely and immedi-
ately from heaven, did infuse royalty in the
king without any action of the people, save
a naked consent only ; and that after God
had made the king, they should approve
only with an after-act of naked approbation.
4. If the people by other governors, as by
heads of families and other choice men,
go.
vern themselves and produce these same for-
mal effects of peace, justice, religion, on
themselves, which the king doth produce,
then is there a power of the same kind, and
as excellent as the royal power, in the peo-
ple ; and there is no reason but this power
should be held to come immediately from
God, as the royal power ; for it is every way
of the same nature and kind, as I shall
prove. Kings and judges differ not in na-
ture and specie, but it is experienced that
people do, by aristocratical guides, govern
themselves, &c. ; so then, if God imine-
THE LAW AND THE PRINCE.
81
diately infuse royalty when the people choos-
eth a king, without any action of the people,
then must God immediately infuse a beam
of governing on a provost and bailie, when
the people choose such, and that without any
action of the people, because all powers are,
in abstraeto, from God. (Rom. xiii. 2.) And
God as immediately maketh inferior judges
as superior, (Prov. viii. 16 ;) and all promo-
tion (even to be a provost or mayor) com-
eth from God only, as to be a king ; except
royalists say, all promotion cometh from the
east and from the west, and not from God,
except promotion to the royal throne ; the
contrary whereof is said, Psal. lxxv. 6, 7 ;
1 Sam. ii. 7, 8. Not only kings, but all
judges are gods, (Psal. lxxxii. 1, 2,) and
therefore all must be the same way created
and moulded of God, except by Scripture
royalists can show us a difference. An
English prelate1 giveth reasons why peo-
ple, who are said to make kings as effi-
cients and authors, cannot unmake them :
the one is, because God, as chief and sole
supreme moderator, maketh kings ; but I
say, Christ, as the chief moderator and head
of the church, doth immediately confer abi-
lities upon a man to be a preacher; and
though, by industry, the man acquire abi-
lities, yet in regard the church doth not so
much as instrumentally confer those abi-
lities, they may be said to come from God
immediately, in relation to the church who
calleth the man to the ministry. Yea,
royalists, as our excommunicated Prelate
learned from Spalato, say, that God, at the
naked presence of the church's call, doth
immediately infuse that from heaven by
which the man is now in holy orders and a
pastor, whereas he was not so before ; and
yet prelates cannot deny but they can un-
make ministers, and have practised this in
their unhallowed courts ; and, therefore,
though God immediately, without any ac-
tion of the people, make kings, this is a
weak reason to prove they cannot unmake
them. As for their indellible character,
that prelates cannot take from a minister ;
it is nothing, if the church may unmake a
mi.iister, though his character go to prison
with him. We seek no more but to annul
the reason. God immediately maketh kings
and pastors, therefore no power on earth
can unmake them. This consequence is as
weak as water. 2. The other cause is,
1 Joan. Roffens. de potest, pap. 1. 2, c. 5.
because God hath erected no tribunal
on earth higher than the king's tribunal,
therefore no power on earth can unmake
a king. The antecedent and consequence
is both denied, and is a begging of the
question ; for the tribunal that made the
king is above the king. Though there be
no tribunal formally regal and kingly above
the king, yet is there a tribunal virtual
eminently above him in the case of tyran-
ny ; for the states and princes have a tribu-
nal above him.
Assert, — To this the constituent cause is
of more power and dignity than the effect,
and so the people are above the king. The P.
Prelate borrowed an answer from Arnisseus,
and Barclay, and other royalists, and saith,
If we knew anything in law, or were ruled
by reason, " every constituent, (saith Ar-
nisseus1 and Barclay, more accurately than
the P. Prelate had a head to transcribe their
words,) where the constituent hath resigned
all his power in the hand of the prince whom
he constitutes, is of more worth and power
than he in whose hand he resigns the power :
so the proposition is false. The servant
who hath constituted his master lord of his
liberty, is not more worthy than his master
whom he hath made his lord, and to whom
he hath given himself as a slave, (for after he
hath resigned his liberty he cannot repent,
he must keep covenant though to his hurt,)
yea, such a servant is not only not above his
master, but he cannot move his foot with-
out his master." " The governor of Britain
(saith Arnisasus) being despised by king
Philip, resigned himself as vassal to king
Edward of England ; but did not for that
make himself superior to king Edward. In-
deed, he who constituteth another under him
as a legate is superior; but the people do con-
stitute a king above themselves, not a king
under themselves ; and, therefore, the people
are not by this made the king's superior, but
his inferior."
Ans. 1. — It is false that the people doth,
or can by the law of nature, resign their
whole liberty in the hand of a king. 1.
They cannot resign to others that which
they have not in themselves, Nemo potest
dare quod non habet; but the people hath
not an absolute power in themselves to de-
stroy themselves, or to exercise those tyran-
nous acts spoken of, 1 Sam. viii. 11 — 15,
&c. ; for neither God nor nature's law hath
de authorit. princip. c, 1. n. 1.
82
LEX, REX ; OR,
given any such power. 2. He who consti-
tuted himself a slave is supposed to be com-
pelled to that unnatural act of alienation of
that liberty which he hath from his Maker
from the womb, by violence, constraint, or
extreme necessity, and so is inferior to all
free men ; but the people doth not make
themselves slaves when they constitute a
king over themselves ; because God, giving
to a people a king, the best and most excel-
lent governor on earth, giveth a blessing
and special favour, (Isa. i. 26 ; Hos. i. 1 1 ;
Isa. iii. 6, 7 ; Psal. lxxix. 70—72 ;) but to
lay upon his people the state of slavery, in
which they renounce their whole liberty,
is a curse of God. (Gen. ix. 25 ; xxvii.
29 ; Deut. xxviii. 32, 36.) But the peo-
ple, having their liberty to make any often,
or twenty, their king, and to advance one
from a private state to an honourable throne,
whereas it was in their liberty to advance
another, and to give him royal power of ten
degrees, whereas they might give him power
of twelve degrees, of eight, or six, must be
in excellency and worth above the man
whom they consitute king, and invest with
such honour ; as honour in the fountain, and
honos participans et originans, must be
more excellent and pure than the derived
honour in the king, which is honos partial*
patus et originatus. If the servant give
his liberty to his master, therefore he had
that liberty in him, and in that act, liberty
must be in a more excellent way in the ser-
vant, as in the fountain, than it is in the
master ; and so this liberty must be purer
in the people than in the king ; and there-
fore, in that both the servant is above the
master, and the people worthier than the
king. And when the people give themselves
conditionally and covenant-wise to the king,
as to a public servant, and patron, and tu-
tor,— as the governor of Britain, out of his
humour, gavenimself to king Edward — there
is even here a note of superiority. Every
giver of a benefit, as a giver, is superior to
him to whom the gift is given ; though after
the servant hath given away his gift of li-
berty, by which he was superior, he cannot
be a superior, because by his gift he hath
made himself inferior. The people consti^-
tuteth a king above themselves, I distin.-
guish supra se, above themselves ; according
to the fountain-power of royalty, — that is
false ; for the fountain-power remaineth
most eminently in the people, 1. Because
they give it to the king, ad modum recipi-
entis, and with limitations; therefore it is
unlimited in the people, and bounded and
limited in the king, and so less in the king
than in the people. 2. If the king turn
distracted, and an ill spirit from the Lord
come upon Saul, so as reason be taken from
a Nebuchadnezzar, it is certain the people
may put curators and tutors over him who
hath the royal power. 3. If the king be
absent and taken captive, the people may
give the royal power to one, or to some few,
to exercise it as custodes regni. And, 4.
If he die, and the crown go by eleotion,
they may create another, with more or less
power. All which evinceth, that they never
constituted over themselves a king, in re-
gard of fountain-power ; for if they give
away the fountain, as a slave selleth his li-
berty, they could not make use of it. In-
deed they set a king above them, quoad
potostatem legum executivam, in regard of
a power of executing laws and actual go-
vernment for their good and safety ; but this
proveth only that the king is above the peo-
ple, »ara «•}, in some respect. But the most
eminent and fountain-power of royalty re-
maineth in the people as in an immortal
spring, which they communicate by succes-
sion to this or that mortal man, in the man-
ner and measure that they think good. Ul-
pian1 and Bartolus,2 cited by our Prelate out
of Barclaius, are only to be understood of
the derived, secondary, and borrowed power
of executing laws, and not of the fountain-
power, which the people cannot give away,
no more than they can give away their ra-
tional nature ; for it is a power natural to
conserve themselves, essentially adhering to
every created being. For if the people give
all their power away, what shall they re-
serve to make a new king, if this man die?
What if the royal line should cease ? there
be no prophets immediately sent of God
to make kings. What if he turn tyrant,
and destroy his subjects with the sword ?
The royalists say, they may fly ; but, when
they made him king, they resigned all their
power to him, even their power of flying ;
for they bound themselves by an oath (say
royalists) to all passive and lawful active
obedience ; and, I suppose, to stand at his
tribunal, if he summoned the three estates,
upon treason, to come before him, is con-
1 Ulpian 1. 1, ad Sc. Tubil. Populus omne suum
imperium et potestatem confert in Regem.
a Bartolns ad 1. hostes 24, f. de capt. et host.
THE LAW AND THE PRINCE.
tained in the oath, that royalists say, bind-
eth all, and is contradictory to flying.
Arnisaeus, a more learned jurist and di-
vine than the P. Prelate, answereth the
other maxim, " The end is worthier than
the mean leading to the end, because it is
ordained for the end. These means, (saith
he,) which refer their whole nature to the
end, and have all their excellency from the
end, and have excellency from no other
thing but from the end, are less excellent
than the end. That is time, such an end as
medicine is for health." And Hugo Gro-
tius, (1. 1, c. 3, n. 8,) " Those means which
are only for the end, and for the good of the
end, and are not for their own good, also
are of less excellency, and inferior to the
end; but so the assumption is false. But
these means which, beside their relation to
the end, have an excellency of nature in
themselves, are not always inferior to the
end. The disciple, as he is instituted, is
inferior to the master ; but as he is the son
of a prince, he is above the master. But
by this reason the shepherd should be infe-
rior to brute beasts, to sheep ; and the mas-
ter of the family is for the family, and re-
ferreth all that he hath for the entertaining
of the family ; but it followeth not therefore
the family is above him. The form is for
the action, is therefore the action more ex-
cellent than the form, and an accident than
the subject or substance ?" And Grotius
saith, " Every government is not for the
good of another, but some for its own good,
as the government of a master over the ser-
vant, and the husband over the wife.
Arts. — I take the answer thus : Those
who are mere means, and only means re-
ferred to the end, they are inferior to the
end ; but the king, as king, hath all his of-
ficial and relative goodness in the world, as
relative to the end. All that you can ima-
gine to be in a king, as a king, is all relative
to the safety and good of the people, (Rom.
xiii. 4,) " He is a minister for thy good."
He should not, as king, make himself, or
his own gain and honour, his end. I grant,
the king, as a man, shall die as another
man, and so he may secondarily intend his
own good ; and what excellency he hath as
a man, is the excellency of one mortal man,
and cannot make him amount in dignity,
and in the absolute consideration of the ex-
cellency of a man, to be above many men
and a whole kingdom ; for the more good
things there be, the better they are, so the
good things be multiplicable, as a hundred
men are better than one ; otherwise, if the
good be such as cannot be multiplied, as one
God, the multiplication maketh them worse,
as many gods are inferior to one God. Now
if royalists can show us any more in the king
than these two, we shall be obliged to them ;
and in both he is inferior to the whole.
The Prelate and his followers would have
the maxim to lose credit ; for then (say
they) the shepherd should be inferior to the
sheep ; but in this the maxim faileth in-
deed, because the shepherd is a reasonable
man, and the sheep brute beasts, and so
must be more excellent than all the flocks
of the world. Now, as he is a reasonable
man, he is not a shepherd, nor in that rela-
tion referred to the sheep and their preser-
vation as a mean to the end ; but he is a
shepherd by accident, for the unruliness of
the creatures, for man's sin, withdrawing
themselves from that natural dominion that
man had over the creatures before the fall ;
in that relation of a mean to the end, and
so by accident, is this official relation put on
him ; and according to that official relation,
and by accident, man is put to be a servant
to the brutish creature, and a mean to so
base an end. But all this proveth him,
through man's sin and by accident, to be
under the official relation of a mean to baser
creatures than himself, as to the end, but
not a reasonable man. But the king, as
king, is an official and royal mean to this
end, that the people may lead a godly and
peaceable life under him; and this official
relation being an accident, is of less worth
than the whole people, as they are to be
governed. And I grant the king's son, in
relation to blood and birth, is more excel-
lent than his teachers ; but as he is tauo-ht,
he is inferior to his teacher. But in both
considerations the king is inferior to the
people ; or though he command the people,
and so have an executive power of law above
them, yet have they a fountain -power above
him, because they made him king, and in
God's intention he is given as king for their
good, according to this, " Thou shalt feed
my people Israel," and that, " I gave him
for a leader of my people."
The P. Prelate saith : " The constituent
cause is more excellent than the effect con-
stituted, where the constitution is voluntary,
and dependeth upon the free act of the will,
as when the king maketh a viceroy or a
judge, durante beneplacito, during his free
84
LEX, REX :
will, but not when a man niaketh over his
right to another ; for then there should be
neither faith nor truth in covenants, if peo-
ple might make over their power to their
king, and retract and take back what they
have once given.
Ans. — This is a begging of the question ;
for it is denied that the people can abso-
lutely make away their whole power to the
king. It dependeth on the people that they
be not destroyed. They give to the king a
Eolitic power for their own safety, and they
eep a natural power to themselves which
they must conserve, but cannot give away ;
and they do not break their covenant when
they put in action that natural power to
conserve themselves ; for though the people
should give away that power, and swear
though the king should kill them all, they
should not resist, nor defend their own lives,
yet that being against the sixth command-
ment, which enjoineth natural self-preserva-
tion, it should not oblige the conscience, for
it should be intrinsically sinful ; for it is all
one to swear to non-self-preservation as to
swear to self-murder.
" If the people, (saith the Prelate, beg-
ging the answer from Barclay,1) the consti-
tuent, be more excellent than the effect, and
so the people above the king, because they
constitute him king, then the comities and
corporations may make void all the commis-
sions given to the knights and burgesses of
the House of Commons, and send others in
their place, and repeal their orders; there-
fore Buchanan saith, that orders and laws
in parliament were but ■x^io-jxiyMTa. prepa-
ratory consultations, and had not the force
of a law, till the people give their consent
and have their influence authoritative, upon
the statutes and acts of parliament ; but the
observator holdeth that the legislative power
is whole and entire in the parliament. But
when the Scots were preferring petitions
and declarations they put all power in the
collective body, and kept their distinct ta-
bles.
Ans. — 1. There is no consequence here:
the counties and incorporations that send
commissioners to parliament, may make
void their commissions and annul then- acts,
because they constitute them commissioners.
If they be unjust acts, they may disobey
them, and so disannul them; but, it is pre-
i Sac Sane }Inj. c. 9, p, 129, stolen from Barcla.,
lib. 5, c. 12.
sumed, God hath given no moral power to
do ill, nor can the counties and corporations
give any such power to evil, for they have
not any such from God. If they be just acts,
they are to obey them, and cannot retract
commissions to make just orders. Illud
tantum possumus quod jure possumus, and
therefore, as power to govern justly is irre-
vocably committed by the three estates who
made the king to the king, so is that same
power committed by the shires and corpo-
rations to their commissioners, to decree in
parliament what is just and good irrevo-
cably ; and to take any just power from the
king which is his due, is a great sin. But
when he abuseth his power to the destruc-
tion of his subjects, it is lawful to throw a
sword out of a madman's hand, though it be
his own proper sword, and though he have
due right to it, and a just power to use it
for good ; for all fiduciary power abused may
be repealed. And if the knights and bur-
gesses of the House of Commons abuse their
fiduciary power to the destruction of these
shires and corporations who put the trust on
them, the observator did never say that
parliamentary power wTas so entire and ir-
revocably in them, as that the people may
not resist them, annul their commissions
and rescind their acts, and denude them of
fiduciary power, even as the king may be
denuded of that same power by the three
estates ; for particular corporations are no
more to be denuded of that fountain-power
of making commissioners, and of the self-
preservation, than the three estates are. 2.
The P. Prelate cometh not home to the
mind of Buchanan, who knew the funda-
mental laws of Scotland, and the power of
parliaments ; for his meaning was not to
deny a legislative power in the parliament ;
but when he calleth their parliamentary de-
clarations vgeGouxivfiicra, his meaning is only
that which lawyers and schoolmen both say,
Leges non promulgates non habent vim le-
gis actu complete obligatoriw, — " Laws not
promulgated do not oblige the subject while
they be promulgated ;" but he fulfils Bucha-
nan, when he saith, " Parliamentary laws
must have the authoritative influence of the
people, before they can be formal laws, or
any more than vgdcvXiufutTa or preparatory
notions. And it was no wonder when the
king denied a parliament, and the supreme
senate of the secret council was corrupted,
that the people did then set up tables, and
extraordinary judicatures of the three es-
Tilt: LAW AMD THE PRINCE.
85
tates, seeing there could not be any other
government for the time.
Barclay1 answereth to this : " The mean
is inferior to the end, it holdeth not ; the
tutor and curator is for the minor, as for
the end, and given for his good ; but it fol-
loweth not that, therefore, the tutor, in the
administration of the minor or pupil's inhe-
ritance, is not superior to the minor."
Aiis. — It followeth well that the minor
virtually, and in the intention of the law, is
more excellent than the tutor, though the
tutor can exercise more excellent acts than
the pupil, by accident, for defect of age in
the minor, yet he doth exercise those acts
with subordination to the minor, and with
correction, because he is to render an ac-
count of his doings to the pupil coming to
age; so the tutor is only more excellent
and superior in some respect, x*rk *-< but not
simply, and so is the king in some respect
above the people.
The P. Prelate beggeth from the roya-
lists another of our arguments, Quod efficit
tale, est magis tale? — "That which maketh
another such, is far more such itself." If the
people give royal power to the king, then
tar more is the royal power in the people.
By this (saith the Prelate) it shall follow, if
the observator give all his goods to me, to
make me rich, the observator is more rich :
if the people give most part of their goods to
foment the rebellion, then the people are
more rich, having given all they have upon
the public faith.
Ans. — 1. This greedy Prelate was made
richer than ten poor pursuivants, by a bi-
shopric; it will follow well, — therefore, the
bishopric is richer than the bishop, whose
goods the curse of God blasteth. 2. It hold-
eth in efficient causes, so working in other
things as the virtue of the effect remaineth
in the cause, even after the production of
the effect. As the sun maketh all things
light, the fire all things hot, therefore the
sun is more light, the fire more hot ; but
where the cause doth alienate and make
over, in a corporal manner, that which it
hath to another, as the hungry Prelate would
have the observator's goods, it holdeth not ;
for the effect may exhaust the virtue of the
cause, but the people doth, as the fountain,
derive a stream of royalty to Saul, and
1 Barcla., lib. 4, cone. Monarrho., c. 11, p. 27.
" Sacr. Naur. Mai., c. 13, p. 130, stolen out of Ar-
aisxus de jure Majest. c. 3, u. 1, p. 34.
make him king, and yet so as they keep
fountain-power of making kings in them-
selves; yea, when Saul is dead to make Da-
vid king at Hebron, and when he is dead to
make Solomon king, and alter him to make
Rehoboam king ; and, therefore, in the peo-
ple there is more fountain-power of making
kings than in David, in Saul, in any king of
the world. As for the Prelate's scoff about
the people's giving of their goods to the good
cause, I hope it shall, by the blessing of God,
enrich them more ; whereas prelates, by the
rebellion in Ireland, (to which they assent,
when they council his Majesty to sell the
blood of some hundred thousands of inno-
cents killed in Ireland,) are brought, from
thousands a year, to beg a morsel of bread.
The P. Prelate (p. 131) answereth that
maxim, Quod efficit tale, id ipsum est ma-
gis tale, — " That which maketh another
such, it is itself more such." It is true, de
principio formali effectivo, (as I learned in
the university,) of such an agent as is for-
mally such in itself as is the effect produced.
Next, it is such as is effective and produc-
tive of itself, as when fire heateth cold water,
so the quality must be formally inherent in
the agent ; as wine maketh drank, it follow-
eth not, wine is more drunk, because drunk-
enness is not inherent in the wine, nor is it
capable of drunkenness; and, therefore, Aris-
totle qualifieth the maxim with this, Quod
efficit tale est magis tale, modo utrique in-
sit, — " and it holdeth not in agents, who ope-
rate by donation, if the right of the kino- be
transferred from the people to the king."
The donation divesteth the people totally of
it, except the king have it by way of loan,
which, to my thinking, never yet any spoke.
Sovereignty never was, never can be, in
the community. Sovereignty hath power of
life and death, which none hath over him-
self, and the community conceived without
government, all as equal, endowed with
nature's and native liberty, of that commu-
nity no one can have power over the life of
another. And so the argument may be
turned home, if the people be not tales,
such by nature, (as hath formally royal
power, he should say,) they cannot give the
king royal power ; also, none hath power of
life and death, either more eminently or
formally, the people, either singly or collec-
tively, have not power over their own life-
much less over their neighbours'.
Ans. — 1. The Prelate would make the
maxim true of a formal cause, and this he
LEX, REX ; OR,
learned in the University of St. Andrews.
He wrongeth the university, he rather learn-
ed it while he kept the calves of Crail. The
wall is white from whiteness ; therefore,
whiteness is more white by the Prelate's
learning. Never such thing was taught in
that learned university. 2. Principium for-
mate effectivum is as good logic as princi-
pium effectivum materiale, formale, finale.
The Prelate is in his accuracy of logic now.
He yet maketh the causality of the formal
cause all one with the causality of the effi-
cient ; but he is weak in his logic. 3. He
confoundeth a cause equivocal and a cause
univocal, and in that case the maxim hold-
eth not. Nor is it necessary to make true
the maxim, that the quality be inherent in
the cause the same way ; for a city maketh
a mayor, but to be a mayor is one way in the
city, and another way in him who is created
mayor. The Prelate's maxim would help
him, if we reasoned thus : The people mak-
eth the king, therefore the people is more a
king, and more formally a sovereign than
the king. But that is no more our argu-
ment than the simile that Maxwell used, as
near heart and mouth both. Wine maketh
drunk the Prelate, therefore wine is more
drunk. But we reason thus : The fountain-
power of making six kings is in the people,
therefore there is more fountain-power of
royalty in the people than in any one king.
For we read that Israel made Said king,
and made David king, and made Abimelech
king ; but never that king Said made an-
other king, or that an earthly king made
another absolute king. 4. The Prelate will
have the maxim false, where the agent work-
eth by donation, which yet holdeth true by
his own grant (c. 9, p. 98). The king giv-
eth power to a deputy, therefore there is
more power in the king. 5. He supposeth
that which is the basis and foundation of all
the question, that people divesteth them-
selves totally of their fountain-power, which
is most false. 6. Either they must divest
themselves totally (saith he) of their power,
or the king hath power from the people,
by way of loan, which, to my thinking, never
any yet Spake. But the P. Prelate's think-
ing is short, and no rule to divines and
lawyers ; for, to the thinking of the learned
jurists, this power of the king is but fiduci-
ary, and that is (whether the Prelate think
it or think it not) a sort of power by trust,
pawn or loan. Hex director Regni, non
proprietarius, (Molina;, in consnet. Parisi.
Tit. 1,9; I Gloss, 7, n. 9,)—" The king is
a life-renter, not a lord, or proprietor of his
kingdom." So Novel. 85, in princip, et c.
18, Quod magistratus sit nudus dispen-
sator et defensor jurium regni, non pro-
prietarius, constat, ex eo quod non posset
alienare imperium, oppida, urbes, regiones
ve, vel res subditorum, bonave regni. So
Gregory, /. 3, c. 8, de Repub. per c. 1,
Sect, prceterea, de propo. feud. Hotto-
man, quest, illust. 1 ; Ferdinan. Vasquez,
I. 1, c. 4; Bossius, de princip. et privileg.
illius, n. 290, — " The king is only a steward,
and a defender of the laws of the kingdom,
not a proprietor, because he hath not power
to make away the empire, cities, towns,
countries, and goods of the subjects ;" and,
bona commissa magistratui, sunt subjecta
restitutioni, et in prejudicium successorum
alienari non possunt, [per I. ult. Sect, sed
nost. C. Comment, de leg. I. peto 69, fra-
trem de leg. 2, I. 32, ult. d. t.) — " All the
goods committed to any magistrate are un-
der restitution ; for he hath not power to
make them away, to the prejudice of his
successors." The Prelate's thoughts reach
not the secrets of jurists, and therefore
he speaketh with a warrant; he will say
no more than his short-travelled thoughts
can reach, and that is but at the door.
7. Sovereignty is not in the community,
(saith the P. Prelate). Truly it neither
is, nor can be, more than ten, or a thou-
sand, or a thousand thousands, or a whole
kingdom, can be one man ; for sovereignty
is the abstract, the sovereign is the concrete.
Many cannot be one king or one soverign :
a sovereign must be essentially one ; and a
multitude cannot be one. But what then ?
May not the sovereign power be eminently,
fontaliter, originally and radically in the
people ? I think it may, and must be. A
king is not an under judge: he is not a
lord of council and session formally, be-
cause he is more. The people are not
king formally, because the people are emi-
nently more than the king ; for they make
David king, and Saul king ; and the power
to make a lord of council and session, is in
the king (say royalists). 8. A commu-
nity hath not power of life and death ; a
king hath power of life and death (saith
the Prelate). What then ? Therefore a
community is not king. I grant all. The
power of making a king, who hath power of
life and death, is not in the people. Poor
man ! It is like prelates' logic. Samuel
THE LAW AND THE PRINCE.
87
is not a king, therefore he cannot make
David a king. It followeth not by the Pre-
I late's ground. So the king is not an infe-
rior judge. What ! Therefore he cannot
make an inferior judge? 9. The power of
life and death is eminently and virtually in
the people, collectively taken, though not
formally. And though no man can take
away his own life, or hath power over his
own life formally, yet a man, and a body of
men, hath power over their own lives, radi-
cally and virtually, in respect they may ren-
der themselves to a magistrate, and to laws
which, if they violate, they must be in ha-
zard of then* lives ; and so they virtually
have power of their own lives, by putting
them under the power of good laws, for the
peace and safety of the whole, 10. This is
a weak consequence. None hath power of
his own life, therefore, far less of his neigh-
bour's (saith the Prelate). I shall deny the
consequence. The king hath not power of
his own life, that is, according to the Pre-
late's mind, he can neither, by the law of
nature, nor by any civil law, kill himself;
therefore, the king hath far less power to
kill another ; it followeth not ; for the
judge hath more power over his neigh-
bour's life than over his own, 11, But,
saith the P. Prelate, the community con-
ceived without government, all as equal,
endowed with nature's and native liberty,
hath no power of life and death, because all
are bom free ; and so none is born with
dominion and power over his neighbour's
life. Yea, but so, Mr P. Prelate, a king
considered without government, and as born
a free man, hath not power of any man's
life more than a community hath ; for king
and beggar are born both alike free. But a
community, in this consideration, as they
come from the womb, have no politic consi-
deration at all. If you consider them as
without all policy, you cannot consider them
as invested with policy ; yea, if you consi-
der them so as they are by nature, void of
all policy, they cannot so much as add their
after-consent and approbation to such a man
to be their king, whom God immediately
from heaven maketh a king ; for to add
such an after-consent, is an act of govern-
ment. Now, as they are conceived to want
all government, they cannot perform any
act of government. And this is as much
against himself as against us,
2. The power of a part and the power of
the whole is not alike. Royalty never ad-
vanceth the king above the place of a mem-
ber ; and lawyers say, the king is above the
subjects, in sensu diviso, in a divisive sense,
he is above this or that subject ; but he is
inferior to all the subjects collectively taken,
because he is for the whole kingdom, as a
mean for the end,
Obj. — If this be a good reason, that he is
a mean for the whole kingdom as for the
end ; that he is therefore inferior to the
whole kingdom, then is he also inferior to
any one subject ; for he is a mean for the
safety of every subject, as for the whole
kingdom.
Ans. — Every mean is inferior to its com-
plete, adequate, and whole end ; and such
an end is the whole kingdom in relation to
the king ; but every mean is not always
inferior to its incomplete, inadequate, and
partial end. This or that subject is not ade-
quate, but the inadequate and incomplete
end in relation to the king.
The Prelate saith, Kings are Dii Elohirn,
gods; and the manner of their propaga-
tion is by filiation, by adoption, sons of the
Most High, and God's tirst-bom. Now,
the first-born is not above every brother
severally ; but if there were thousands,
millions, numberless numbers, he is above
all in precedency and power.
Ans. — Not only kings but all inferior
judges are gods. Psal. lxxxii., God stand-
eth in the congregation of the gods, that is
not a congregation of kings. So (Exod. xxii.
8) the master of the house shall be brought
P'tlbtfrvSK to the gods, or to the
judges. And that there were more judges
than one, is clear by ver. 9 ; and it* they
shall condemn ]^\^^ jarshignur, con-
demnarint, (John x. 35,) im Sfoi"; He called
them gods ; Exod. iv. 16, " Thou shalt be
to Aaron □'PlS'Xb as a god." They
are gods analogically only. God is infi-
nite, not so the king. God's will is a law,
not so the king's. God is an end to himself,
not so the king. The judge is but God by
office, and representation, and conservation
of the people. It is denied that the first-
born is in power before all his brethren,
though there were millions. That is but
said, one, as one, is inferior to a multitude.
As the first-born was a politic ruler to his
brethren, he was inferior to them politically.
Obj, — The collective university of a king-
dom are subjects, sons, and the king their
father, no less than this or that subject is
the king's subject. For the university of
LEX, REX ; OR,
subjects are either the king, or the king's
subjects ; for all the kingdom must be one
of these two ; but they are not the king,
therefore they are his subjects.
Ans. — All the kingdom, in any considera-
tion, is not either king or subjects. I give
a third : The kingdom collective is neither
properly king nor subject ; but the king-
dom embodied in a state, having collateral,
is a co-ordinate power with the king.
Obj. — The university is ruled by laws,
therefore they are inferior to the king who
ruleth all by law.
Ans. — The university, properly, is no
otherwise ruled by laws than the king is
ruled by laws. The university, formally, is
the complete politic body, endued with a
nomothetic faculty, which cannot use vio-
lence against itself, and so is not properly
under a law.
QUESTION XX.
WHETHER OR NO INFERIOR JUDGES BE UNI-
VOCALLY AND ESSENTIALLY JUDGES, AND
THE IMMEDIATE VICARS OF GOD, NO LESS
THAN THE KING, OR IF THEY BE ONLY THE
DEPUTIES AND VICARS OF THE KING.
It is certain that, in one and the same
kingdom, the power of the king is more in
extension than the power of any inferior
judge ; but if these powers of the king and
the inferior judges differ intensive and in
spece, and nature is the question, though it
be not all the question.
Assert. — Inferior judges are no less es-
sentially judges, and the immediate vicars
of God, than the king. Those who judge in
the room of God, and exercise the judg-
ment of God, are essentially judges and de-
puties of God, as well as the king ; but in-
ferior judges are such, therefore the propo-
sition is clear. The formal reason, why the
king is univocally and essentially a judge,
is, because the king's throne is the Lord's
throne ; 1 Chron. xxix. 23, " Then Solomon
sat on the throne of the Lord, as king, in-
. stead of David his father." 1 Kings i. 13,
It is called David's throne, because the king
is the deputy of Jehovah ; and the judgment
is the Lord's. I prove the assumption. In-
ferior judges appointed by king Jehoshaphat
have this place, 2 Chron. xix. 6, " The king
said to the judges, Take heed what .ye do,
mrrS »d ibstpn c-ikS kS »3.
tor ye judge not tor man, but for the Lord."
Then, they were deputies in the place of the
Lord, and not the king's deputies in the for-
mal and official acts of judging. Ver. 7,
" Wherefore, now, let the fear of the Lord
be upon you, take heed and do it; for there
is no iniquity with the Lord our God, nor
respect of persons, or taking of gifts.
Hence I argue, 1. If the Holy Ghost, in
this good king, forbid inferior judges, wrest-
ing of judgment, respecting of persons, and
taking of gifts, because the judgment is
the Lord's, and if the Lord himself were
on the bench, he would not respect persons,
nor take gifts, then he presumeth, that
inferior judges are in the stead and place of
Jehovah, and that when these inferior
judges should take gifts, they make, as it
were, the Lord, whose place they repre-
sent, to take gifts, and to do iniquity, and
to respect persons ; but that the Holy Lord
cannot do. 2. If the inferior judges, in the
act of judging, were the vicars and deputies
of king Jehoshaphat, he would have said,
judge righteous judgment. Why? For the
judgment is mine, and if I, the king, were
on the bench, I would not respect persons,
nor take gifts ; and you judge for me, the
Supreme Judge, as my deputies. But the
king saith, They judge not for man, but for
the Lord. 3. If, by this, they were not
God's immediate vicars, but the vicars and
deputies of the king, then, being mere ser-
vants, the king might command them to
pronounce such a sentence, and not such a
sentence as I may command my servant
and deputy, in so far as he is a servant
and deputy, to say this, and say not that ;
but the king cannot limit the conscience of
the inferior judge, because the judgment is
not the king's, but the Lord's. 4. The
king cannot command any other to do that
as king, for the doing whereof he hath
no power from God himself; but the king
hath no power from God to pronounce what
sentence he pleaseth, because the judgment
is not his own but God's. And though in-
ferior judges be sent of the king, and ap-
pointed by him to be judges, and so have
their external call from God's deputy the
king, yet, because judging is an act of con-
science, as one man's conscience cannot
properly be a deputy for another man's con-
science, so neither can an inferior judge,
as a judge, be a deputy for a king. There-
CHE LAW AXD THE PRINCE.
fore, the inferior judges have designation to
their office from the king ; but if they have
from the king that they are judges, and be
not God's deputies, but the king's, they
could not be commanded to execute judg-
ment for God, but for the king : (Deut, i.
17,) Moses appointed judges, but not as his
deputies to judge and give sentence, as sub-
ordinate to him ; for the judgment (saith
he) is the Lord's, not mine. 5. If all the
inferior judges in Israel were but the depu-
ties of the king, and not immediately subor-
dinate to God as his deputies, then could
neither inferior judges be admonished nor
condemned in God's word for unjust judg-
ment, because their sentence should be nei-
ther righteous nor unrighteous judgment,
but in so far as the king should approve it
or disapprove it ; and, indeed, that royalist,
Hugo Grotius* saith so, — that an inferior
judge can do nothing against the will of the
supreme magistrate if it be so. Whenever
God commandeth inferior judges to execute
righteous judgment, it must have this sense,
" .Respect not persons in judgment, except
the king command you ; crush not the poor,
oppress not the fatherless, except the king
command you." I understand not such po-
licy. Sure I am the Lard's commandments,
rebukes and threats, oblige, in conscience, the
inferior judge as the superior, as is manifest
in these scriptures, Jer. v. 1 ; Isa. i. 17, 21 ;
v. 7 ; x, 2 ; lix. 14 ; Jer. xxii. 3 ; Ezek.
xviii. 8 ; Amos v. 7 ; Mic. iii. 9 ; Hab. i.
4; Lev. xix. 15; Deut. xvii. 11; i. 17;
Exod. xxiii, 2.
Grotius saith,2 " It is here as in a cate-
gory : the middle specie is, in respect of the
superior, a specie, — in respect of the inferior,
a genus ; so inferior magistrates in relation
to those who are inferior to them and un-
der them, are magistrates or public per-
sons; but in relation to superior magis-
trates, especially the king, they are private
persons, and not magistrates.
Ans. — Jehoshaphat esteemed not judges,
appointed by himself, private men, 2 Chron.
1 Grotius de jure belli et pac. lib. 1, c. 4, Nam
oranis facultas gubernandi in magistratibus, sum-
mae potestati ita subjicitur ut quiequid contra vo-
luntatem summi imperantis faciaut, id defectum sit
ea facultate, ac proinde de pro actu privato haben-
dum.
2 Grotius ib. species intermedia, si genus respi-
cias, est species, si speciem infra positam, est genus :
ita magistratus illi, inferiorum quidem ratione ha-
bita sunt publicae, personam, at snperiores si consi-
derentur, sunt privati.
xix. 6, 7, '* Ye judge not for men, but for
the Lord." We shall prove that under-
judges are powers ordained of God : in
Scotland the king can take no man's in-
heritance from him because he is the king ;
but if any man possess lands belonging to
the crown, the king, by his advocate, must
stand before the lordrjudges of the session,
and submit the matter to the laws of the
land ; and if the king, for property of
goods, were not under a law, and were not
to acknowledge judges as judges, I see not
how the subjects in either kingdoms have
any property I judge it blasphemy to say,
that a sentence of an inferior judge must be
no sentence, though never so legal nor just,
if it be contrary to the king's will, as Gro-
tius saith.
He citeth that of Augustine : " If the
consul command one thing, and the emperor
another thing, you contemn not the power,
but you choose to obey the highest." Peter
saith, He will have us one way to be sub-
ject to the king, as to the supreme, pine ul-
la exccptionc, without any exception ; but to
those who are sent by the king, as having
their power from the king.
Arg. 1. — When the consul commandeth
a thing lawful, and the king that same thing
lawful, or a thing not unlawful, we are to
obey the king rather than the consul. So I
expone Augustine. We are not to obey the
king and the consul the same way, that is,
with the same degree of reverence and sub-
mission ; for we owe more submission of spi-
rit to the king than to the consul ; but ma-
gis et minus non variant speciem, more or
less varieth not the nature of things. But if
the meaning be that we are not to obey the
inferior judge, commanding things lawful,
if the king command the contrary, this is
utterly denied. But saith Grotius, " The
inferior judge is but the deputy of the king,
and hath all his power from him ; therefore
we are to obey him for the king." — Ans.
The inferior judge may be called the deputy
of the king, (where it is the king's place to
make judges,) because he hath his external
call from the king, and is judge infora soli,
in the name and authority of the king ; but
being once made a judge, in foro poli, be-
fore God, he is as essentially a judge, and in
his official acts, no less immediately sub-
jected to God than the king himself.
Arg, 2. — These powers to whom we are
to yield obedience, because they are ordain-
ed of God, these are as essentially judges as
o
LEX, REX ; OR,
the supreme magistrate the king ; but in-
ferior judges are such, therefore inferior
judges are as essentially judges as the su-
preme magistrate. The proposition is, Rom.
xiii. 1, for that is the apostle's arguments;
whence we prove kings are to be obeyed, be-
cause they are powers from God. I prove the
assumption : inferior magistrates are powers
from God, Deut. i. 17; xix. 6, 7; Exod.
xxii. 7 ; Jer. v. i. ; and the apostle saith,
" The powers that be are ordained of God."
Arg. 3. — Christ testified that Pilate had
power from God as a judge (say royalists)
no less than Csesar the emperor. (John xix.
11 ; 1 Pet. ii. 12.) We are commanded to
obey the king and those that are sent by
him, and that for the Lord's sake, and for
conscience to God ; and (Rom. xiii. 5) we
must be subject to all powers that are of
God, not only for wrath, but for conscience.
Arg. 4. Those who are rebuked because
they execute not just judgment, as well as
the king, are supposed to be essentially
judges, as well as the king ; but inferior
judges are rebuked because of this, Jer.
xxii. 15—17; Ezek. xlv. 9—12; Zeph.
iii. 3 ; Amos v. 6, 7 ; Eccles. iii. 16 ; Mic.
iii. 2—4; Jer. v. 1,31.
Arg. 5. — He is the minister of God for
good, and hath the sword not in vain, but to
execute vengeance on the evil-doers, no less
than the king. (Rom. xiii. 2 — 4.) He to
whom agreeth, by an ordinance of God, the
specific acts of a magistrate, is essentially a
magistrate.
Arg 6. — The resisting of the inferior ma-
gistrate in his lawful commandments is the
resisting of God's ordinance, and a breach of
the fifth commandment, as is disobedience
to parents ; and not to give him tribute, and
fear, and honour, is the same transgression,
Rom. xiii. 1 — 7.
Arg. 7. — These styles, of gods, of heads
of the people, of fathers, of physicians and
healers of the sons of the Most High, of
such as reign and decree by the wisdom of
God, &c, that are given to kings, for the
which royalists make kings only judges, and
all inferior judges but deputed, and judges
by participation, and at the second hand, or
given to inferior judges. (Exod. xxii. 8, 9 ;
John x. 35.) Those who are appointed
judges under Moses (Deut. i. 16) are called,
in Hebrew or Chaldee, (1 Kings viii. 1, 2 ;
v. 2 ; Mic. iii. 1 ; Josh, xxiii. 2 ; Num. i.
16,) »tPK"l rasce, »{^H fathers, (Acts vii.
2 ; Josh. xiv. 1; xix. 15; 1 Chron. viii. 28,)
healers, (Isa. iii. 7,) gods, and sons of the
Most High. (Psal. lxxxii. 1, 2, 6, 7 ; Prov.
viii. 16, 17.) I much doubt if kings can in-
fuse godheads in their subjects. I conceive
they have, from the God of gods, these gifts
whereby they are enabled to be judges ; and
that kings may appoint them judges, but
can do no more : they are no less essentially
judges than themselves.
Arg. 8. — If inferior judges be deputies of
the king, not of God, and have all their au-
thority from the king, then may the king
limit the practice of these inferior judges.
Say that an inferior judge hath condemned
to death a paricide, and he be conveying
him to the place of execution, the king com-
eth with a force to rescue him out of his
hand ; if this inferior magistrate bear God's
sword for the terror of ill-doers, and to exe-
cute God's vengeance on murderers, he can-
not but resist the king in this, which. I judge
to be his office ; for the inferior judge is to
take vengeance on ill-doers, and to use the
co-active force of the sword, by virtue of his
office, to take away this paricide. Now, if
he be the deputy of the king, he is not to
break the jaws of the wicked (Job xxix.
17) ; not to take vengeance on evil-doers
(Rom. xiii. 4) ; nor to execute judgment on
the wicked, Psal. cxlix. 9) ; nor to execute
judgment for the fatherless (Deut. x. 18) ;
except a mortal man's creator, the king, say
Amen. Now, truly then, God, in all Israel,
was to rebuke no inferior judge for pervert-
ing judgment, — as he doth, Exod. xxiii.
26; Mic. iii. 2—4; Zech. iii. 3; Num.
xxv. 5 ; Deut. i. 16 ; for the king only is
lord of the conscience of the inferior judge
who is to give sentence, and execute sen-
tence righteously, upon condition that the
king, the only univocal and proper judge,
first decree the same, as royalists teach.
Hear our Prelate (c. 4, p. 46). — How is
it imaginable that kings can be said to judge
in God's place, and not receive the power
from God ? But kings judge in God's place.
(Deut. i. 17; 2 Chron. xix. 6.) Let no
man stumble (this is his prolepsis) at this,
that Moses in the one place, and Jeho-
shaphat in the other, spake to subordinate
judges under them. This weakeneth no-
wise our argument ; for it is a ruled case
in law, Quod quis facit per alium, facit
per se, all judgments of inferior judges are
in the name, authority, and by the power of
the supreme, and are but communicatively
and derivatively from the sovereign power.
THE LAW AND THE PRINCE.
;!!
Ans. — How is it possible that inferior
judges (Deut. i. 17 ; 2 Chron. xix. 6) can
be said to judge in God's place, and not
receive the power from God immediately,
without any consent or covenant of men ?
So saith the P. Prelate. But inferior judges
judge in the place of God, as both the P.
Prelate and Scripture teach. (Deut. i. 17 ;
2 Chron. xix. 6.) Let the Prelate see to
the stumbling conclusion, for so he feareth
it proves to his bad cause. He saith the
places, Deut. i. 17 ; 2 Chron. xix. 6, prove
that the king judgeth in the room of God,
because his deputies judge in the place of
God. The Prelate may know we would deny
this stumbling and lame consequence; for
1. Moses and Jehoshaphat are not speaking
to themselves, but to other inferior judges,
and doth publicly exhort them. Moses and
Jehoshaphat are persuading the regulation
of the personal actions of other men who
might pervert judgment. 2. The Prelate
is much upon his law, after he had foresworn
the gospel and religion of the church where
he was baptized. " What the king doth by
another, that he doth by himself." But
were Moses and Jehoshaphat afraid that
they should pervert judgment in the un-
just sentence pronounced by under judges,
of which sentence they could not know any
thing ? And do inferior judges so judge in
the name, authority, and power of the long,
as not in the name, authority, and power of
the Lord of lords and King of kings ? or is
the judgment the king's? No; the Spirit of
God saith no such matter. The judgment
executed by those inferior judges is the
Lord's, not a mortal king's; therefore, a
mortal king may not hinder them to exe-
cute judgment.
Obj. — He cannot suggest an unjust sen-
tence, and command an inferior judge to give
out a sentence absolvatory on cut-throats, but
he may hinder the execution of any sentence
against Irish cut-throats.
Ans. — It is all one to hinder the execu-
tion of a just sentence, and to suggest or
command the inferior judge to pronounce
an unjust one ; for inferior judges, by con-
science of their office, are both to judge
rio-hteously, and by force and power of the
sword given to them of God (Rom. xiii.
1 — 4) to execute the sentence ; and so God
hath commanded inferior judges to execute
judgment, and hath forbidden them to wrest
judgment, to take gifts, except the king com-
mand them so to do.
The king is by the grace of God, the in-
ferior judge is judge by the grace of the
king ; even as the man is the image of God,
and the woman the man's image.1
Ans. 1. — This distinction is neither true
in law nor conscience. Not in law, for it dis-
tmguisheth not betwixt ministros regis, et
ministros regni. The servants of the king-
are his domestics, the judges are ministri
regni, non regis ; the ministers and judges
of the kingdom, not of the king. The king-
doth not show grace, as he is a man, in
making such a man a judge ; but justice
as a king, by a royal power received from
the people, and by an act of justice, he
makes judges of deserving men ; he should
neither for favour nor bribes make any one
judge in the land. 2. It is by the grace of
God that men are to be advanced from a
private condition to be inferior judges, as
royal dignity is a free gift of God ; 1 Sam.
ii. 7, " The Lord bringeth low and lifteth
up ;" Psal. lxxv. 7, " God putteth down one
and setteth up another." Court flatterers
take from God and give to kings ; but to
be a judge inferior is no less an immediate
favour of God than to be king, though the
one be a greater favour than the other.
Magis honos and Majoc honos are to be
considered.
Arg 9. — Those powers which differ gra-
dually, and per magis et minus, by more
and less only, differ not in nature and spe-
cies, and constitute not kings and inferior
judges different univocally. But the power
of kings and inferior judges are such; there-
fore kings and inferior judges differ not uni-
vocally. That the powers are the same in
nature, I prove, 1. by the specific acts and
formal object of the power of both ; for both
are powers ordained of God. (Rom. xiii. 1.)
To resist either, Ls to resist the ordinance of
God. 2. Both are by office a terror to evil
workers, ver. 3. 3. Both are the ministers of
God for good. Though the king send and
give a call to the inferior judge, that doth
no more make the inferior judge's powers in
nature and specie different than ministers
of the Word, called by ministers of the
Word, have offices different in nature. Ti-
mothy's office to be preacher of the Word
differeth not in specie from the office of the
presbytery which laid hands on him, though
their office by extension he more than 1 i-
mothy's office. The people's power is put
Symmon'a Loyal Subjects' Belief, sect. 1, p. 3.
92
LEX, REX ; OR,
forth in those same acts, when they choose
one to be their king and supreme governor^
and when they set up an aristocratical go-
vernment, and choose many, or more than
one, to be their governors ; for the formal
object of one or many governors is justice
and religion, as they are to be advanced.
The form and manner of their operation is,
brachio seculari, by a co-active power, and
by the sword. The formal acts of king and
many judges in aristocracy are these same,
the defending of the poor and needy from
violence, the conservation of a community in
a peaceable and a godly life. (1 Tim. ii. 2 ;
Job xxix. 12, 13 ; Isa. i, 17.) These same
laws of God that regulateth the king in all
his acts of royal government^ and tyeth and
obligeth his conscience, as the Lord's de-
puty, to execute judgment for God, and not
in the stead of men, in God's court of hea-
ven, doth in like manner tie, and oblige
the conscience of aristocratical judges, and
all inferior judges, as is clear and evident
by these places, 1 Tim. ii. 2, not only kings,
but all in authority *«',«; Si l» im^tf oW«5 are
obliged to procure that their subjects lead a
quiet and peaceable life, in all godliness and
honesty. All in conscience are obliged
(Deut. i. 16) to judge righteously between
every man and his brother, and the stran^-
ger that is with them. Neither are they
to respect persons in judgment, but are to
hear the small as well as the great, nor to
be afraid of the lace of men, — the judgment
administered by all, is God's. (2 Chron.
xix. 6.) All are obliged to fear God, (Deut.
xvii. 19, 20,) to keep the words of the law ;
not to be lifted up in heart above their
brethren. (Isa. i. 17 ; Jer. xxii. 2, 3.) Let
any man show me a difference, according to
God's word, but in the extension, that what
the king is to do as a king, in all the king-
dom and whole dominions, (if God give to
him many, as he gave to David, and Solo-
mon, and Joshua^) that the inferior judges
are to do in such and such circuits, and li-
mited places, and I quit the cause ; so as
the inferior judges are little kings, and the
king a great and delated judge>— as a com-
pressed hand or fist, and the hand stretched
out in fingers and thumb, are one hand; so
here. 4. God owneth inferior judges as a
congregation of gods; (Psal. lxxxii. 1, 2 ;)
for that God sittcth in a congregation or
senate of kings or monarchs, I shall not be-
lieve till I see royalists show to me a com-
monwealth of monarchs convening in one
judicature. All are equally called gods,
(John x. 35; Exod. xxii. 8,) if for any
cause, but because all judges, even inferior,
are the immediate deputies of the King of
kings, and their sentence in judgment as
the sentence of the Judge of all the earth,
I shall be informed by the P. Prelate,
when he shall answer my reasons, if his in-
terdicted lordship may cast an eye to a poor
presbyter below ; and as wisdom is that
by which kings reign, (ProVi viih 15, so also
ven 16,) by which princes rule, and nobles,
even all the judges of the earth ; all that is
said against this is, that the king hath a
prerogative royal, by which he is differ-
enced from all judges in Israel, called jus
regis nJDtJ^D, for, (saith Barclay,1) the
king, as king, essentially hath a domination
and power above all, so as none can censure
him, or punish him, but Godj because there
be no thrones above his but the throne of
God. The judges of Israel, as Samuel,
Gideon, &c. had no domination, — the do-
minion was in God's hand: " We may re-
sist an inferior judge, (saith Arnisseus,2)
otherwise there were no appeal from him,
and the wrong we suffer were irreparable"
as saith Marantius.3 " And all the judges
of the earth (saith Edward Symmons4)
are from God more remotely ; namely, me-
diante rege-, by the mediation of the Su-
preme, even as the lesser stars have their
light from God by the mediation of the
sum To the first I answer : — There was a
difference betwixt the kings of Israel and
their judges, no question; but if it be an es-
sential difference, it is a question. For, 1.
The judges were raised up in an extraordi-
nary manner, out of any tribe, to defend
the people, and vindicate their liberty, God
remaining their king: the king, by the
Lord's appointment, was tyed, after Saul,
to the royal tribe of Judah, till the Mes-
siah's coming. God took his own blessed
liberty to set up a succession in the ten
tribes-. 2. The judges were not by succes-
sion from father to son : the kings were, as
I conceive, for the typical eternity of the
Messiah's throne, presignified to stand from
i Inferiores Judloes stint improprie Vicarii Regis,
quod missioriem externam ad officium, sed imme-
diati Dei vicarii, quoad officium in quod missi sunt.
Barclaius contr. Monarch. 1. 2, p. 56, 57.
2 Arnisaeus de autlioritate princip. c. 3, n. 9.
3 Marant. disp. 1, Zoan. tract. 3, de defens. Myn-
sing. obs, 18, cent. 5,
■* Symmous, sect. 1, p. 2.
THE LAW AXD THE PRINCE.
generation to generation; 3. Whether the
judges were appointed by the election of the
people, or no, some doubt ; because Jeph-
thah was so made judge : but I think it
was not a law in Israel that it should be so.
But the first mould of a king (Deut. xvii.)
is by election. But that God gave power
of domineering, that is, of tyrannising, to a
king, so as he cannot be resisted, which he
gave not to a judge, I think no scripture
can make good. For by what scripture
can royalists warrant to us that the people
might rise in anus to defend themselves
against Moses, Gideon, Eli, Samuel, and
other judges, if they should have tyrannised
over the people ; and that it is unlawful to
resist the most tyrannous king in Israel and
Judah ? Yet Barclay and others must say
this, if they be true to that principle of ty-
ranny, that the jus regis, the law or man-
ner of the king (1 Sam. viii. 9, 11 ; and 1
Sam. x. 25) doth essentially differ betwixt
the kings of Israel and the judges of Is-
rael. But we think God gave never any
power of tyranny to either judge or king of
Israel ; and domination in that sense was
by God given to none of them. Arnisseus
hath as little for him, to say the inferior
magistrate may be resisted, because we may
appeal from him ; but the king cannot be
resisted, quia sanctitas majestatis id non
permittit, the sanctity of royal majesty will
not permit us to resist the king.
Atis. — That is not Paul's argument to
prove it unlawful to resist Icings, as kings,
and doing their office, because of the sanc-
tity of their majesty; that is, as the man in-
tendethj because of the supreme, absolute,
and unlimited power that God hath given
him. But this is a begging of the question,
and all one as, to say, the king may not be
resisted, because he may not be' resisted;
for sanctity of majesty, if we believe roya-
lists, includeth essentially an absolute supre-
macy of power, whereby they are above the
reach of all thrones, laws, powers, or resis-
tance on earth. But the argument is, re-
sist not, because the power is of God; But
the inferior magistrate's power is of God.
Resist not, because you resist God's ordi-
nance in resisting the judge ; but the infe-
rior judge is God's ordinance. (Rom. xiii. 1 ;
Deut. i. 17 ; 2 Chron. xix. 6.) Mr Sym-
mons saith, " All judges on earth are from
the king, as stars have their fight from the
sun." I answer, 1. Then aristocracy were
unlawful, lor it hath not its power from mo-
narchy. Had the lords of the Philistines,
have the states of Holland, no power but
from a monarchy ? Name the monarch.
Have the Venetians any power from a king ?
Indeed, our Prelate saith from Augustine,
(Confess, lib. 3, cap. 8,) Generale pactum
est societatis humance, obedire Regibus suis,
it is an universal covenant of human so-
ciety, and a dictate of nature, that men
obey their kings. " I beg the favour of
sectaries (saith he) to show as much for
aristocracy and democracy." Now all other
governments, to those born at court, are the
inventions of men. But I can show that
same warrant for the one as for the other ;
because it is as well the dictate of nature
that people obey their judges and rulers as
it is that they obey their kings. And Au-
gustine speaketh of all judges in that place,
though he name kings ; for kingly govern-
ment is no more of the law of nature
than aristocracy or democracy ; nor are
any born judges or subjects at all. There
is a natural aptitude in all to either of these,
for the conservation of nature ■, and that is
all. Let us see that men, naturally inclining
to government, incline rather to royal go-
vernment than to any other. That the P.
Prelate shall not be able to show ; for father-
ly government, being in two, is not kingly,
but nearer to aristocracy ; and when many
families were on earth, every one indepen-
dent within themselves, if a common ene-
my should invade a tract of land governed
by families, I conceive, by nature's light,
they should incline to defend themselves,
and to join in one politic body for their own
safety, as is most natural. But, in that case
they, having no king, and there were no rea-
son of many lathers all alike loving their
own families and self-preservation, why one
should be king over all, rather than an-
other, except by voluntary compact. So it is
clear that nature is nearer to aristocracy be-
fore this contract than a monarchy. And let
him show us in multitudes of families dwell-
ing together, before there was a king, as
clear a wTarrant for monarchy as here is for
aristocracy ; though to me both be laudable
and lawful ordinances of God, and the dif-
ference merely accidental, being one and the
same power from the Lord, (Rom. xiii. 1,)
which is in divers subjects ; in one as a mo-
narchy, in many as in aristocracy ; and the
one is as natural as the other, and the sub-
jects are accidental to the nature of the
power. 2. The stars have no light at all
94
LEX, REX ; OR,
but in actual aspect toward the sun ; and
they are not lightsome bodies by the free
will of the sun, and have no immediate light
from God formally, but from the sun ; so as
if there were no sun, there should be no
stars. 3. For actual shining and sending
out of beams of light actu secundo, they de-
pend upon the presence of the sun ; but for
inferior judges, though they have their call
from the king, yet have they gifts to govern
from no king on earth, but only from the
King of kings. 4. When the king is dead,
the judges are judges, and they depend not
on the king for their second acts of judging ;
and for the actual emission and putting forth
their beams and rays of justice upon the
poor and needy, they depend on no volun-
tary aspect, information or commandment
of the king, but on that immediate subjec-
tion of their conscience to the King of kings.
And their judgment which they execute is
the Lord's immediately, and not the king's ;
and so the comparison halteth.
Arg. 10. — If the king dying, the judges
inferior remain powers from God, the de-
puties of the Lord of Hosts, having their
power from God, then are they essentially
judges ; yea, and if the estates, in their prime
representators and leaders, have power in the
death of the king to choose and make an-
other king, then are they not judges and
rulers by derivation and participation, or im-
properly; but the king is rather the ruler
by derivation and participation than those
who are called inferior judges. Now, if these
judges depend in their sentences upon the
immediate will of him who is supposed to be
the only judge, when this only judge dieth,
they should cease to be judges : for Expir-
ante mandatore cxpirat mandatum ; be-
cause the fountain-judge drying up, the
streams must dry up. Now, when Saul
died, the princes of the tribes remain by
God's institution princes, and they by God's
law and warrant (Deut. xvii.) choose David
their king.
Arg. 11. — If the king, through absolute
power, do not send inferior judges, and con-
stitute them, but only by a power from the
people ; and if the Lord have no less imme-
diate influence in making inferior judges
than in making kings, then there is no
ground that the king should be sole judge,
and the inferior judge only judge by deri-
vation from him, and essentially his deputy,
and not the immediate deputy of God. If
the former is true, therefore, so is the lat-
ter. And, 1. That the king's absolute will
maketh not inferior judges, is clear, from
Deut. i. 15. Moses might not follow his
own will in making inferior judges whom
he pleased : God tyed him to a law, (ver.
13,) that he should take wise men, known
amongst the people, and fearing God, and
hating covetousness. And these qualifica-
tions were not from Moses, but from God ;
and no less immediately from God than the
inward qualification of a king (Deut. xvii.) ;
and therefore, it is not God's law that the
king may make inferior judges only, Du-
rante beneplacito, during his absolute will ;
for if these divine qualifications remain in
the seventy elders, Moses, at his will, could
not remove them from their places. 2.
That the king can make heritable judges
more than he can communicate faculties
and parts of judging, I doubt. Riches are
of fathers, but not promotion, which is from
God, and neither from the east nor the
west : that our nobles are born lords of
parliament, and judges by blood, is a posi-
tive law. 3. It seemeth to me, from Isa.
iii. 1 — 4, that the inferior judge is made by
consent of the people ; nor can it be called
a wronging of the king, that all cities and
burghs of Scotland and England have power
to choose their own provosts, rulers, and
mayors. 4. If it be wan-anted by God,
that the lawful call of God to the throne
be the election of the people, the call of in-
ferior judges must also be from the people,
mediately or immediately. So I see no
ground to say, that the inferior judge is
the king's vicegerent, or that he is in re-
spect of the king, or in relation to supreme
authority, only a private man.
Arg. 12. These judges cannot but be
univocally and essentially judges no less
than the king, without which in a king-
dom justice is physically impossible ; and
anarchy, and violence, and confusion, must
follow, if they be wanting in the kingdom.
But without inferior judges, though there
be a king, justice is physically impossible ;
and anarchy and confusion, &c. must follow.
Now this argument is more considerable,
that without inferior judges, though there
be a king in a kingdom, justice and safety
are impossible ; and if there be inferior
judges, though there be no king, as in aris-
tocracy, and when the king is dead, and
another not crowned, or the king is minor,
or absent, or a captive in the enemy's land,
yet justice is possible, and the kingdom
THE LAW AND THE PRINCE.
0.3
preserved ; the medium of the argument
is grounded upon God's word, Num. xi.
14, 15, when Moses is unable alone to judge
the people, seventy elders are joined with
him (ver. 16, 17) ; so were the elders ad-
! joined to help him (Exod. xxiv. 1 ; Deut.
! v. 23 ; xxii. 16 ; Josh, xxiii. 2 ; Judg. viii.
} 14; xi. 5, 11 ; 1 Sam. xi. 3 ; 1 Kings xx.
7; 2 Kings vi. 32; 2 Chron. xxxiv. 29;
Ruth iv. 4 ; Deut. xix. 12 ; Ezek. viii. 1 ;
Lam. i. 19); then were the elders of Moab
thought to have a king. The natural end
of judges hath been indigence and weak-
ness, because men could not in a society
defend themselves from violence ; therefore,
by the light of nature they gave their power
to one or more, and made a judge or judges
to obtain the end of self-preservation. But
nature useth the most efficacious means to
obtain its end; but in a great society and
kingdom, the end is more easily attained by
many governors than by one only ; for where
there is but one, he cannot minister justice
to all; and the farther that the children are
removed from their father and tutor, they
are the nearer to violence and injustice.
Justice should be at as easy a rate to the
poor as a draught of water. Samuel went
yearly through the land to Bethel, Gilgal,
Mizpeh, (1 Sam. vii. 16,) and brought jus-
tice to the doors of the poor. So were our
kings of Scotland obliged to do of old ; but
now justice is as dear as gold. It is not a
good argument to prove inferior judges to
be only vicars and deputies of the king, be-
cause the king may censure and punish them
when they pervert judgment. 1. Because
the king, in that punisheth them not as
judges, but as men. 2. That might prove
all the subjects to be vicars and deputies of
the king, because he can punish them all, in
the case of their breach of laws.
QUESTION XXI.
WHAT POWER THE PEOPLE AND STATES OF
PARLIAMENT HAVE OVER THE KING, AND
IN THE STATE.
It is true the king is the head of the
kingdom ; but the states of the kinodom
are as the temples of the head, and so, as
essentially parts of the head as the king is
the crown of the head.1
1 Principcs sunt capitis tempora rex vertex.
Assert. 1. — These orrfincs regni, the
states, have been in famous nations : so
there were fathers of families, and princes
of tribes amongst the Jews: the Ephori
amongst the Lacedemonians, (Polyb. hist.
1. 6 ;) the senate amongst the Romans ; the
forum suprrbiense amongst the Arrago-
nians; the parliaments in Scotland, Eng-
land, France, Spain. Abner communed
with the elders ot Israel to bring the king
home; (2 Sam. iii. 17 ;) and there were
elders in Israel, both in the time of the
judges, and in the time of the kings, who
did not only give advice and counsel to the
judges and kings, but also were judges no
less than the kings and judges, which I shall
make good by these places: Deut. xxi. 19,
the rebellious son is brought to the elders of
the city, who had power of life and death,
and caused to stone him ; Deut. xxii. 18,
" The elders of the city shall take that man
and chastise him ;" Josh. xx. 4, but beside
the elders of every city, there were the el-
ders of Israel and the princes, who had also
judicial power of life and death, as the judges
and king had ; Josh. xxii. 30, even when
Joshua was judge in Israel, the princes of
the congregation and heads of the thousands
of Israel did judicially cognosce whether the
children of Reuben, of Gad, and of half the
tribe of Manasseh, were apostates from God,
and the religion of Israel ; 2 Sam. v. 3, all
the elders of Israel made David king at
Hebron ; and Num. xii., they are appointed
by God not to be the advisers only and help-
ers of Moses ; but (ver. 14 — 17) to bear a
part of the burden of ruling and governing
the people, that Moses might be eased. Je-
remiah is accused, (xxvi. 10,) upon his life,
before the princes ; Josh. vii. 4, the princes
sit in judgment with Joshua ; Josh. ix. 15,
Joshua and the princes of the congregation
sware to the Gibeonites that they would not
kill them. The princes of the house of
Israel could not be rebuked for oppression
in judgment (Mic. iii. 1 — 3) if they had
not had power of judgment. So (Zeph. iii.
3 ; Deut. i. 17 ; 2 Chron. xix. 6, 7) they
are expressly made judges in the place of
God; and (1 Sam. viii. 2) without advice
or knowledge of Samuel, the supreme judge,
they convene and ask a king ; and without
any head or superior, when there is no king,
they convene a parliament, and made David
king at Hebron; and when David is banished,
they convene to bring him home again ;
when tyrannous Athalia reigneth, they con-
96
LEX, REX ; OR,
vene and make Joash king, and that with-
out any king; and (Josh, xxii.) there is a
parliament convened, and, for any thing we
can read, without Joshua, to take cognisance
of a new altar. It had been good that the
parliaments both of Scotland and of Eng-
land had convened, though the king had
not indicted and summoned a parliament,
without the king, to take order with the
wicked clergy, who had made many idola-
trousjaltars; and the P. Prelate should have
brought an argument to prove it unlawful,
in foro Dei, to set up the tables and con-
ventions in our kingdom, when the prelates
were bringing in the grossest idolatory into
the church — a service for adoring of altars,
of bread, the work of the hand of the baker
— a god more corruptible than any god of
silver and gold.
And against Achab's will and mind, (1
Kings xviii. 19,) Elias causeth to kill the
priests of Baal, according to God's express
law. It is true it was extraordinary ; but
no otherwise extraordinary than it is at this
day. When the supreme magistrate will
not execute the judgment of the Lord, those
who made him supreme magistrate, under
God, who have, under God, sovereign li-
berty to dispose of crowns and kingdoms,
are to execute the judgment of the Lord,
when wicked men make the law of God of
none effect. 1 Sam. xv. 32, so Samuel
killed Agag, whom the Lord expressly com-
manded to be killed, because Saul disobeyed
the voice of the Lord. I deny not but there
is necessity of a clear warrant that the ma-
gistrate neglect his duty, either in not con-
vening the states, or not executing the judg-
ment of the Lord. I see not how the con-
vening of a parliament is extraordinary to
the states ; for none hath power ordinary
when the king is dead, or when he is dis-
tracted, or captive in another land, to con-
vene the estates and parliament, but they
only ; and in their defect, by the law of na-
ture, the people may convene. But, if they
be essentially judges no less than the king,
as I have demonstrated to the impartial
reader, in the former chapter, I conceive,
though the state make a positive law, for or-
der's cause, that the king ordinarily convene
parliaments ; yet, if we dispute the matter
in the court of conscience, the estates have
intrinsically (because they are the estates,
and essentially judges of the land) ordinary
power to convene themselves. Because,
when Moses, by God's rule, hath appointed
seventy men to be catholic judges in the
land, Moses, upon his sole pleasure and will,
hath not power to restrain them in the ex-
ercise of judgment given them of God ; for,
as God hath given to any one judge power to
judge righteous judgment, though the king
command the contrary, so hath he given to
him power to sit down in the gate, or the
bench, when and where the necessity of the
oppressed people calleth for it. For the ex-
press commandment of God, which saith to
all judges, execute judgment in the morn-
ing, involveth essentially a precept to all
the physical actions, without wluch it is im-
possible to execute judgment ; — as, namely,
if, by a divine precept, the judge must exe-
cute judgment ; therefore he must come to
some public place, and he must cause party
and witnesses come before him, and he must
consider, cognosce, examine, in the place of
judgment, things, persons, circumstances :
and so God, who commandeth positive acts
of judging, commandeth the judge's loco-
motive power, and his natural aotions of
compelling, by the sword, the parties to
come before him, even as Christ, who com-
mandeth his servants to preach, command-
eth that the preacher and the people go to
church, and that he stand or sit in a place
where all may hear, and that he give him-
self to reading and meditating before he
come to preach. And if God command one
judge to come to the place of judgment, so
doth he command seventy, and so all
estates to convene in the place of judgment.
It is objected, " That the estates are not
judges, ordinary and habitually, but only
judges at some certain occasions, when the
king, for cogent and weighty causes, calleth
them, and calleth them not to judge, but to
give him advice and counsel how to judge."
Arg. 1. — -They are no less judges habitu-
ally than the king, when the common affairs
of the whole kingdom necessitated these
public watchmen to come together ; for even
the king judgeth not actually, but upon oc-
casion. This is to beg the question, to say
that the estates are not judges but when
the king calleth them at such and such oc-
casions ; for the elders, princes, and heads of
families and tribes, were judges ordinary,
because they made the king.
Arg. 2. — The kingdom, by God, yea, and
church, justice and religion, so far as they
concern the whole kingdom, are committed
not to the keeping of the king only, but to
all the judges, elders, and princes of the
THE LAW AXD THE PHIXCE,
land : and they are rebuked as evening
wolves, lions, oppressors, (Ezek. xxii. 27 ;
Zee. iii. 3 ; Isa, iii. 14, 15 ; Mic. iii. 1—3,)
when they oppress the people in judgment,
so are they (Deut. i. 15 — 17 ; 2 Chron. xix,
6, 7) made judges, and therefore they are
no more to be restrained not to convene by
the king's power, (which is in this accumur
lative and auxiliary, not privative,) than
they can be restrained in judgment, and in
pronouncing such a sentence, as the king
pleased, and not such a sentence ; because,
as they are to answer to God for unjust
sentences, so also for no just sentences, and
for not convening to judge, when religion
and justice, which are fallen in the streets,
calleth for them.
Arg. 3.— As God in a law of nature hath
given to every man the keeping and self-
preservation of himself and of his brother,
Cain ought in his place to be the keeper of
Abel his brother; so hath God committed
the keeping of the commonwealth, by a posi-
tive law, not to the king alone, because that
is impossible.^ (Num. xi. 14, 17 ; 2 Chron.
xix. 1 — 6 ; 1 Chron. xxvii.)
Arg. 4. — If the king had such a power
as king, and so from God, he should have
power to break up the meeting of all courts
of parliament, secret councils, and all in-
ferior judicatures ; and when the congrega-
tion of gods, as Psal. lxxxii., in the midst of
which the Lord standeth, were about to
pronounce just judgment for the oppressed
and poor, they might be hindered by the
king ; and so they should be as just as the
king maketh them, and might pervert judg-
ment, and take away the righteousness of
the righteous from him, (Isa. v. 23,) be-
cause the king commandeth ; and the cause
of the poor should not come before the
judge, when the king so commandeth. And
shall it excuse the estates, to say, we could
not judge the cause of the poor, nor crush
the priests of Baal, and the idolatrous
mass-prelates, because the king forbade us ?
So might the king break up the meeting of
the lords of session, when they were to de-
cern that Naboth's vineyard should be re-
stored to him, and hinder the states to re-
press tyranny ; and this were as much as if
the states should say, We made this man
our king, and with our good-will we agree
he shall be a tyrant, For if God gave it to
Junius Brut. q. 2, p. 51, vind. contr. Tyran.
are to consent that he
him as a king,
enjoy it.
Arg. 5. — If Barclay and other flatterers
have leave to make the parliament but
counsellors and advisers of the king, and the
king to be the only and sole judge, the
king is, by that same reason, the sole judge,
in relation to all judges ; the contrary
whereof is clear. (Num. xi. 16 ; Deut. i.
15 — 17; Chron. xix. 6; Rom. xiii. 1, 2;
1 Pet, ii. 13, 14.) Yea, but (say they) the
king, when he sendeth an ambassador, he
may tie him to a written commission ; and
in so far as he exceedeth that, he is not an
ambassador; and clear it is, that all in-
ferior judges (1 Pet. ii. 13, 14) ar« but
sent by the king ; therefore, they are so
judges as they are but messengers, and are
to adhere to the royal pleasure of the prince
that sent them. Ans. (1.) — The ambassa-
dor is not to accept an unjust ambassage,
that fighteth with the law of nature. (2.)
The ambassador and the judge differ, the
ambassador is the king and states' deputy,
both in his call to the ambassy, and also
in the matter of the ambassy • for which
cause he is not to transgress what is given
to him in writ as a rule ; but the inferior
judges, and the high court of parliament,
though they were the king's deputies, (as
the parliament is in no sort his deputy, but
he their deputy royal) yet it is only in re-
spect of their call, not in respect of the
matter of their commission, for the king
may send the judge to judge in general
according to the law, justice, and religion,
but he cannot depute the sentence, and com-
mand the conscience of the judge to pro-
nounce such a sentence, not such. The in-
ferior judge in the act of judging is as
independent, and his conscience as imme-
diately subject to God as the king ; therefore,
the king owes to every sentence his appro-
bative suffrage as king, but not either his
directive suffrage, or his imperative suffrage
of absolute pleasure.
Arg. 6. — If the king should sell his
country, and bring in a foreign army, the
estates are to convene, to take course for the
safety of the kingdom.
Arg. 7. — If David exhort the princes of
Israel to help king Solomon in governing
the kingdom, and in building the temple
(2 Chron. xxxii.3): — if Hezekiahtookcounsel
with his princes, and his mighty men in the
matter of holding off the Assyrians, who
were to invade the land: if David (1 Chron.
98
xiii. 1 — 1) consult with the captains of
thousands and hundreds, to bring the ark of
God to Kirjath-jearim : if Solomon (1 Kino-s
viii. 1) " assemble the elders of Israel, and
all the heads of the tribes, and the chief of
the fathers, to bring the ark of the taber-
nacle to the congregation of the Lord :"
if Achab gathered together the states of
Israel, in a matter that nearly concerned
religion : if the elders and people (1 Kings
xx. 8) counsel and decree that king Achab
should hearken to Ben-hadad king of Syria,
and if Ahasuerus make no decrees, but with
consent of his princes, (Esth. i. 21,) nor
Darius any act without his nobles and
princes: if Hamor and Shechem (Gen.
xxxiv. 20) would not make a covenant with
Jacob's sons, without the consent of the men
of the city, and Ephron the Hittite would
not sell Abraham a burial place in his land
without the consent of the children of Heth
(Gen. xxiii. 10) : — then must the estates
have a power of judging with the king or
prince in matters of religion, justice, °and
government, which concern the whole king-
dom. But the former is time by the records
of Scripture ; therefore, so is the latter.
Arg. 8. — The men of Ephraim complain
that Jephthah had gone to war against the
children of Amnion without them, and
hence rose war betwixt the men of Ephraim
and the men of Gilead, (Judges xii. 1 — 3,)
and the men of Israel fiercely contended
with the men of Judah, because they brought
king David home again without them, plead-
ing that they were therein despised, (2. Sam.
xix. 41 — 43,) which evinceth that the
whole states have hand in matters of public
government, that concern all the kingdom ;
and when there is no king, (Judg. xx.) the
chief of the people, and of all the tribes, go
out in battle against the children of Ben-
jamin.
Arg. 9. — Those who make the king, and
so have power to unmake him in the case of
tyranny, must be above the king in power
of government ; but the elders and princes
made both David and Saul kings.
Arg. 10. — There is not any who say that
the princes and people, (1 Sam. xiv.) did
not right in rescuing innocent Jonathan
from death, against the king's will and his
law.
Arg. 11. — The special ground of royalists
is, to make the king the absolute supreme,
giving all life and power to the parliament
and states, and of mere grace convening
them. So saith Feme, the author of
Ossorianum, (p. 69,) but this ground is
false, because the king's power is fiduciary,
and put in his hand upon trust, and must be
ministerial, and borrowed from those who
put him in trust, and so his power must be
less, and derived from the parliament. But
the parliament hath no power in trust from
the king, because the time was when the
man who is the king had no power, and the
parliament had the same power that they
now have ; and now, when the king hath re-
ceived power from them, they have the
whole power that they had before — that is,
to make laws ; and resigned no power to the
king, but to execute laws; and his convening
of them is an act of royal duty, which he
oweth to the parliament by virtue of his
office, and is not an act of grace ; for an act
of grace is an act of free will ; and what the
king doth of free will, he may not do, and so
he may never convene a parliament. But,
when David, Solomon, Asa, Hezekiah, Je-
hoshaphat, Ahaz, convened parliaments,
they convened parliaments as kings, and so
ex debito et virtute officii, out of debt and
royal obligation, and if the king as the king,
be lex animate/,, a breathing and living law,
the king, as king, must do by obligation of
law what he doth as king, and not from
spontaneous and arbitrary grace. If the
Scripture holds forth to us a king in Israel,
and two princes and elders who made the
king, and had power of life and death, as
we have seen ; then is there in Israel
monarchy tempered with aristocracy; and
if there were elders and rulers in every city,
as the Scripture saith, here was also aristo-
cracy and democracy ; and for the warrant
of the power of the estates, I appeal to
jurists, and to approved authors : Arg. I.
aliud. 160, sect. 1 ; De Jur. Reg. I. 22 ;
Mortuo de fidei. I. 11, 14, ad Mum. I. 3,
1,4/ Sigenius De Hep. Judceor. 1. 6, c. 7 ;
Cornelius Bertramo, c. 12,- Junius Brutus,
Vindic. contra. Tyran. sect. 2 ,• Author
Libelli de jur Magistrat. in subd. q. 6 ;
Althus. Politic, c. 18; Calvin Institut. I.
4, c. 20 ,• Pareus Content, in Rom. xiii. ;
Pet. Martyr in Lib. Judic. c. 3 ; Joan
Marianus de rege lib. 1, c. 7 ; Hottoman
de jure Antiq. Regni Gallici I. 1, c. 12/
Buchanan de jure Regni apud Scotos.
Obj. — The king after a more noble way
representeth the people than the estates
doth ; for the princes and commissioners of
parliament have all their power from the
THE LAW AND THE PRINCE.
99
people, and the people's power is concen-
trated in the king.
Ans. — The estates taken collectively do
represent the people both in respect of office,
and of persons, because they stand judges
for them ; for many represent many, ratione
numeri et officii, better than one doth.
The king doth improperly represent the
people, though the power for actual execu-
tion of laws be more in the king, yet a legis-
lative power is more in the estates. Neither
will it follow, that if the estates of a king-
dom do any thing but counsel a king, they
must then command him, for a legal and
judicial advice hath influence in the effect
to make it a law, not on the king's will, to
cause him give the being of a law to that,
which without his will is no law, for this
supposeth that he is only judge.
Obj. — What power the people reserveth,
they reserve it to themselves in unitate,
as united in a parliament ; and therefore
what they do out of a parliament is tumul-
tuous.
Ans. — I deny the consequence ; they re-
serve the power of self-preservation out of a
parliament, and a power of convening in
parliament for that effect, that they may by
common counsel defend themselves.
QUESTION XXII.
WHETHER THE POWER OF THE KING AS KING
BE ABSOLUTE, OR DEPENDENT AND LIMITED
BY GOD'S FIRST MOULD AND PATTERN OF
A KING.
Dr Feme (sect. 3, p. 12) showeth us it was
never his purpose to plead for absoluteness
of an arbitrary commandment, free from all
moral restraint laid on the power by God's
law ; but only he striveth for a power in the
king that cannot be resisted by the subject.
But truly we never disputed with royalists
of any absolute power in the king, free from
moral subjection to God's law. 1. Because
any bond that God's law imposeth on the
king, cometh wholly from God, and the
nature of a divine law, and not from any
voluntary contract or covenant, either ex-
press or tacito, betwixt the king and the
people who made him king ; for, if he fail
against such a covenant, though he should
exceed the cruelty of a king or a man, and
become a lion, a Nero, and a mother-killer,
he should in all his inhumanity and breach
of covenant be accountable to God, not to
any man on earth. 2. To dispute with
royalists if God's law lay any moral restraint
upon the king, were to dispute whether the
king be a rational man or no, and whether
he can sin against God, and shall cry in the
day of God's wrath, (if he be a wicked
prince) Hills fall on us and cover us, as it is
Rev. vi. 15, 16 ; and whether Tophet be
prepared for all workers of iniquity; and
certainly I justify the schoolmen in that
question : Whether or no God could have
created a rational creature, such a one as
by nature is impeccable, and not naturally
capable of sin before God ? . If royalists dis-
pute this question of their absolute monarch,
they are wicked divines.
We plead not at this time, (saith the
Prelate, c. 14, p. 163, stealing from Gro-
tius, Barclay, Arnisaeus, who spake it with
more sinews of reason ;) for a masterly or
despotical, or rather for a slavish sovereign-
ty, which is dominium herile, an absolute
power, such as the great Turk this day ex-
erciseth over his subjects, and the king of
Spain hath over and in his territories with-
out Europe : we maintain only regiam po-
testatem, quce fundatur in paterna, such
royal, fatherly sovereignty, as we live un-
der, blessed be God, and our predecessors.
This, (saith he,) as it hath its royal prero-
gative inherent to the crown naturally, and
inseparable from it, so it trencheth not upon
the liberty of the person, or the property of
the goods of the subject, but in and by the
lawful and just acts of jurisdiction.
Ans. — 1. Here is another absolute power
disclaimed to be in the king ; he hath not
such a masterly and absolute liberty as the
Turk hath. Why ? John P. P., in such a
tender and high point as concerneth soul
and body of subjects in three Christian king-
doms, you should have taught us. What
bonds and fetters any covenant or paction
betwixt the king and people layeth upon
the king, — why he hath not, as kin<r, the
power of the great Turk, I will tell you.
The great Turk may command any of his
subjects to leap into a mountain of fire, and
burn himself quick, in conscience of obe-
dience to his law. And what if the subject
disobey the great Turk ? if the great Turk
be a lawful prince, as you will not deny ; —
and if the king of Spain should command
foreign conquered slaves to do the like. By
your doctrine, neither the one nor the other
100
were obliged to resist by violence, but to
prayj or fly ; whicb botb were to speak to
stones, and were like the man who, in case
of shipwreck^ made his devotion of praying
to the waves of the sea, not to enter the
place of his bed and drown him. But a
Christian king hath not this power ; why ?
and a Christian king (by royalist's doctrine)
hath a greater power than the Turk (if
greater can be) : he hath power to com-
mand his subjects to cast themselves into
hell-fire ; that is, to press on them a ser-
vice wherein it is written, — Adore the work
of men's hands in the place of the living
God ; and this is worse than the Turk's
commandment of bodily burning quick.
And what is left to the Christian subjects
in this case is the very same, and no other
than is left to the Turkish and foreign Spa-
nish subject. Either fly, or make prayers.
There is no more left to us.
2. Many royalists maintain that England
is a conquered nation. Why, then, see
what power, by law of conquest* the king of
Spain hath over his slaves ; the same must
the king of England have over his subjects.
For, to royalists, a title by conquest to a
crown is as lawful as a title by birth or
election ; for lawfulness, in relation to God's
law, is placed in an indivisible point, if we
regard the essence of lawfulness ; and
therefore there is nothing left to England,
but that all protestants who take the oath of
a protestant king, to defend the true pro-
testant religion, should, after prayers con-
veyed to the king through the fingers of
prelates and papists, leave the kingdom
empty to papists, prelates, and atheists.
3. All power restrained that it cannot
arise from ten degrees to fourteen, — from
the kingly power of Saul (1 Sam. viii. 9,
11) to the kingly power of the great Turk,
to fourteen, — must either be restrained by
God's law* or by man's law> or by the in-
nate goodness and grace of the prince, or
by the providence of God. A restraint from
God's law is vain ; for it is no question be-
tween us and royalists but God hath laid a
moral restraint on kings, and all men, that
they have not moral power to sin against
God. Is the restraint laid on by man's
law ? What law of man ? The royalist saith,
the king, as king, is above all law of man.
Then (say I) no law of man can hinder
the king's power of ten, to arise to the Tur-
kish power of fourteen. All law of man, as
it is man's law, is seconded either with ec-
clesiastical and spiritual co-action, such as
excommunication, or with civil and tempo-
ral co-action, such as is the sword, if it be
violated. But royalists deny that either
the sword of the church in excommunica-
tion, or the civil sword, should be drawn
against the king. This law of man should
be produced by this profound jurist, the P.
Prelate, who mocketh at all the statists and
lawyers of Scotland. It is not a covenant
betwixt the king and people at his corona-
tion ; for though there were any such cove-
nant, yet the breach of it doth bind before
God, but not before man. Nor can I see,
or any man else, how a law of man can lay
a restraint on the king's power of two de-
grees* to cancel it within a law, more than
on a power of ten or fourteen degrees* If
the king of Spain, the lawful sovereign of
those over-European people, (as royalists
say,) have a power of fourteen degrees over
those conquered subjects, as a king, I see
not how he hath not the like power over his
own subjects of Spain, to wit, eren of four-
teen ; for what agreeth to a king, as a king,
(and kingly power from God he hath as
king,) he hath it in relation to all subjects,
except it be taken from him in relation to
some subjects, and given by some law of
God, or in relation to some other subjects.
Now no man can produce any such law.
The nature of the goodness and grace of
the prince cannot lay bonds oh the king to
cancel his power, that be should not usurp
the power of the king of Spain toward his
over-Europeans. 1. Royalists plead for a
power due to the king, as king, and that
from God, such as Saul had ; (1 Satm viii.
9, 11 : x. 25;) but this power should be a
power of grace and goodness in the king
as a good man ; not in the king as a king,
and due to him by law : and so the king
should have his legal power from God to
be a tyrant. But if he were not a tyrant,
but should lay limits on his own power,
through the goodness of his own nature,
no thanks to royalists that he is not a ty-
rant ; for, actu primo, and as he is a king,
(as they say) he is a tyrant, having from
God a tyrannous power of ten degrees, as
Saul had ; (1 Sam. viii. •) and why not of
fourteen degrees as well as the great Turk,
or the king of Spain ? If he use it not, it
is his own personal goodness, not his official
and royal power. The restraint of provi-
dence laid by God upon any power to do
ill, hindereth only the exercise of the power
THE LAW AND THE PRINCE.
101
not to break forth in as tyrannous acts as
ever the king of Spain or the great Turk
can exercise toward any. Yea, providence
layeth physical restraint, and possibly mo-
ral, sometimes, upon the exercise of that
power that devils and the most wicked men
of the world hath. But royalists must show
us that providence hath laid bounds on the
king's power, and made it fatherly and not
masterly ; so that if it, the power, exceed
bounds of fatherly power, and pass over to
the despotical and masterly power, it may
be resisted by the subjects ; but that they
will not say.
•i. This paternal and fatherly power that
God hath given to kings, as royalists teach,
trencheth not upon the liberty of the sub-
jects and the property of their goods, but in
and by lawful and just acts of jurisdiction
(saith the P. Prelate). Well ; then it may
trench upon the liberty of soul and body of
the subjects but in and by lawful and just
acts of jurisdiction. But none are to judge
of these acts of jurisdiction, whether they
be just or not just, but the king, the only
judge of supreme and absolute authority
and power. And if the king command the
idolatrous service in the obtruded service-
book, it is a lawful and a just act of jurisdic-
tion. For to royalists, who make the king's
power absolute, all acts are so just to the
subject, though he command idolatry and
Mahommedanism, that we are to suffer only,
and not to resist.
5. The Prelate presumeth that fatherly
power is absolute ; but so, if a father murder
his child, he is not accountable to the ma-
gistrate therefor, but, being absolute over
his children, only the Judge of the world,
not any power on earth, can punish him.
6. We have proved that the king's power
is paternal or fatherly only by analogy, and
improperly,.
7. What is this prerogative royal, we
shall hear by and by.
8. There is no restraint on earth laid
upon this fatherly power of the king but
God's law, winch is a moral restraint. If
then, the king challenge as great a power as
the Turk hath, he only sinneth against God,
but no mortal man on earth may control
him, as royalists teach. And who can know
what power it is that royalists plead for,
whether a despotical power of lordly power,
or a fatherly power ? If it be a power above
law, such as none on earth may resist it, it is
no matter whether it be above law of two
degrees, or of twenty, even to the great
Turk's power.
These go for oracles at court : Tacitus, —
Principi summun rerum arbitrium Dii de-
derunt, subditis obsequii gloria relicta est ;
Seneca, — Indigna digna habenda sunt, Bex
quafacit; Salust, — lrnpune quidvis facer e,
id est, Begem esse. As if to be a king and
to be a god who cannot err were all one.
But certainly these authors are taxing the
license of kings, and not commanding their
powei\
But that God hath given no absolute and
unlimited power to a king above the law, is
evident by this : —
Arg. 1. — He who, in his first institution,
is appointed of God by office, even when he
sitteth on the throne, to take heed to read
on a written copy of God's law, that he may
" learn to fear the Lord his God, and keep
all the words of this law," &c, he is not of
absolute power above law, But (Deut. xvii.
18, 19) the king as king, while he sitteth
on the throne, is to do this ; therefore the
assumption is clear, for this is the law of the
king as king, and not of a man as a man.
But as he sitteth on the throne, he is to
read on the book of the law ; and (ver. 20)
because he is king, " his heart is not to be
lifted up above his brethren ;" and as king,
(ver. 16,) "he is not to multiply horses,"
&c. So politicians make this argument
good : — they say, Rex est lex viva, ani-
mata, et loquens lex, the king as king, is a
living, breathing, and speaking law. And
there be three reasons of this, — 1. If all
were innocent persons, and could do no vio-
lence one to another, the law would rule
all, and all men would put the law in exe-
cution, agendo sponte, by doing right of
their own accord ; and there should be no
need of a king to compel men to do right.
But now, because men are by nature averse
to good laws, therefore there was need of a
ruler, who, by office, should reduce the law
into practice ; and so is the king the law re-
duced in practice. 2. The law is ratio sive
mens, the reason or mind, free from all per-
turbations of anger, lust, hatred, and can-
not be tempted to ill ; and the king, as a
man, may be tempted by his own passions,
and therefore, as king, he cometh by office
out of himself to reason and law ; and so
much as he hath of law, so much of a kino- ;
and in his remotest distance from law and
reason he is a tyrant. 3. Abstracta eon-
cretis sunt puriora et perfectiora. Justice
102
LEX, REX ; OR,
is more perfect than a just man, whiteness
more perfect than the white wall ; so the
nearer the king comes to a law, for the
which he is a king, the nearer to a king,
Propter quod unumquodque tale, id ipsum
magis tale. Therefore, kings throwing laws
to themselves as men, whereas they should
have conformed themselves to the law, have
erred. Cambyses, the son of Cyrus, because
he loved his own sister, would have " the mar-
riage of the brother with the sister lawful."
Anaxarchus said to Alexander, (grieved in
mind that he had killed Clytus,) Regi ac
Jovi themin atque institiam assidere :-—
Judgment and righteousness did alway ac-
company God and the king in all they do ;
but some, to this purpose, say better : — The
law, rather than the king, hath power of
life and death.
Arg. 2. — The power that the king hath
(I speak not of his gifts) he hath it from the
people who maketh him king, as I proved
before ; but the people have neither for-
mally nor virtually any power absolute to
give the king. All the power they have
is a legal and natural power to guide them-
selves in peace and godliness, and save them-
! selves from unjust violence by the benefit of
i rulers. Now, an absolute power above a
1 law is a power to do ill and to destroy the
people, and this the people have not them-
selves, it being repugnant to nature that any
should have a natural power in themselves
to destroy themselves, or to inflict upon
themselves an evil of punishment to destruc-
tion. Though therefore it were given, which
yet is not granted, that the people had re-
sio-ned all power that they have into their
king, yet if he use a tyrannical power against
the people for their hurt and destruction, he
useth a power that the people never gave
him, and against the intention of nature ;
for they invested a man with power to be
their father and defender for their good ;
and he faileth against the people's inten-
tion in usurping an over-power to himself,
which they never gave, never had, never
could give ; for they cannot give what they
never had, and power to destroy themselves
they never had.
Arg. 3. — All royal power, whereby a
king is a king and differenced from a pri-
vate man, armed with no power of the
sword, is from God. But absolute power
to tyrannise over the people and to destroy
them is not a power from God ; therefore
there is not any such royal power absolute.
The proposition is evident, because that
God who maketh kings and disposeth of
crowns, (Prov. viii. 15, 16 ; 2 Sam. xii. 7 ;
Dan. iv. 32,) must also create and give that
royal and official power by which a king is
a king. 1. Because God created man, he
must be the author of his reasonable soul.
If God be the author of things, he must be
the author of their forms by which they are
that which they are. 2. All power is God's,
(1 Chron. xxix. 11 ; Matt. vi. 13 ; Psal.
lxii. 1 1 ; lxviii. 35 ; Dan. ii. 37,) and that ab-
solute power to tyrannise, is not from God.
1. Because, if this moral power to sin be
from God, it being formally wickedness,
God must be the author of sin. 2. What-
ever moral power is from God, the exercises
of that power, and the acts thereof, must be
from God, and so these acts must be morally
good and just ; for if the moral power be of
God, as the author, so must the acts be.
Now, the acts of a tyrannical power are acts
of sinful injustice and oppression, and can-
not be from God. 3. Politicians say, there
is no power in rulers to do ill, but to help
and defend the people, — as the power of a
physician to destroy, of a pilot to cast away
the ship on the rock, the power of a tutor
to waste the inheritance of the orphan, and
the power of father and mother to kill their
children, and of the mighty to defraud and
oppress, are not powers from God. So
Ferdinand. Vasquez illustr. quest. I. 1, c.
26, c. 45; Prickman d. c. 3, sect. Soluta
potestas ; Althus. pol. cap. 9, n. 25.
Barclaius,1 Grotius, Dr Feme, (The P.
Prelate's wit could come up to it,) say,
" That absolute power to do ill, so as no
mortal man can lawfully resist it, is from
God; and the king hath this way power
from God as no subject can resist it, but he
must resist the ordinance of God, and yet
the power of tyranny is not simply from
God."
Ans. — The law saith, Illud possumus
quod jure possumus, Papinus F. filius, D.
de cond. Just. It is no power which is not
lawful power. The royalists say, power of
tyranny, in so far as it may be resisted, and
is punishable by men, is not from God. But
what is the other part of the distinction ? It
must be, that tyrannical power is simpliciter
from God, or in itself it is from God ; but as
it is punishable or restrainable by subjects,
it is not from God. Now, to be punishable
i Barclaius, contra Monarcho. lib. 2. p. 62.
THE LAW AND THE PRINCE.
103
by subjects is but an accident, and tyrannical
power is the subject ; yea, and it is a separ-
able accident ; tor many tyrants are never
punished, and their power is never re-
strained : such a tyrant was Saul, and many
persecuting emperors. Now, it* the tyran-
nical power itself was from God, the ar-
gument is yet valid, and remaineth unan-
swered. And shall not this fall to the ground
as false, which Arnisaeus saith, (de autho.
princ. c. 2, n. 10,) Dum contra ojficium
facit, magistratus non est magistratus,
quippe a quo non injuria, sed jus nasei
debeat, I. meminerint. 6. C. unde vi. din.
in C. quod quis, 24, n. 4, 5. — Et de hoc
neminem dubitare aut dissentire scribit,
Mar ant. disp. 1, num. 14. When the
magistrate doth anything by violence, and
without law, in so far doing against his
office, he is not a magistrate. Then, say I,
that power by which he doth, is not of God.
None doth, then, resist the ordinance of God
who resist the king in tyrannous acts. If
the power, as it cannot be punished by the
subject nor restrained, be from God, there-
fore the tyrannical power itself, and without
this accident — that it can be punished by
men — it must be from God also. But the
conclusion is absurd, and denied by royalists.
I prove the connection : If the king have
such a power above all restraint, the power
itself, to wit, king David's power to kill
innocent Uriah, and deflower Bathsheba,
without the accident of being restrained or
punished by men, it is either from God or
not from God. If it be from God, it must
be a power against the sixth and seventh
commandments, which God gave to David,
and not to any subject ; and so David lied
when he confessed this sin, and this sin can-
not be pardoned because it was no sin : and
kings, because kings, are under no tie of
duties of mercy, and truth, and justice to
their subjects, contrary to that which God's
law requireth of all judges (Deut. i. 15 — 17;
xvii. 15—20; 2 Chron. xix. 6, 7; Rom.
xiii. 3, 4) : if this power be from God, as it
is unrestrainable and unpunishable by the
subject, it is not from God at all ; for how
can God give a power to do ill, that is un-
punishable by men, and not give that power
to do ill ? It is inconceivable ; for in this
very thing that God giveth to David — a
power to murder the innocent — with this re-
spect, that it shall be punishable by God
only, and not by men, God must give it as
a sinful power to do ill, which must be a
power of dispensation to sin, and so not to
be punished by either God or man, which is
contrary to his revealed will in his word.
If such a power as not restrainable by man
be from God by way of permission, as a
power to sin in devils and men is, then it
is no royal power, nor any ordinance of God ;
and to resist this power, is not to resist the
ordinance of God.
Arg. 4. — That power which maketh the
benefit of a king to be no benefit, but a
judgment of God, as a making all the peo-
ple slaves, such as were slaves amongst the
Romans and Jews, is not to be asserted by
any Christian ; but an absolute power to do
ill, and to tyrannise, which is supposed to be
an essential and constitutive of kings, to
difference them from all judges, maketh the
benefit of a king no benefit, but a judgment
of God, as making all the people slaves.
That the major may be clear, it is evident,
1. To have a king is a blessing of God, be-
cause to have no king is a judgment ; Judg.
xvii. 6, " Every man doth what seemeth
good in his own eyes." (Judg. xviii. 1 ;
xix. 1 ; xxi. 25.) 2. So it is a part of
God's good providence to provide a king for
his people. (1 Sam. xvi. 1 ; so 2 Sam. v.
12.) And David perceived that the Lord
had established him king over Israel, and
that he had exalted his kingdom for his
people Israel's sake, 2 Sam. xv. 2, 3, 6 ;
xviii. 3 ; Rom. xiii. 2 — 4. If the king be
a thing good in itself, then can he not, actu
primo, be a curse and a judgment, and es-
sentially a bondage and slavery to the peo-
ple ; also the genuine and intrinsical end of
a king is the good, (Rom. xiii. 4,) and the
good of a quiet and peaceable life in all god-
liness and honesty (1. Tim. ii. 2); and he is
by office, custos utriusque tabular, whose
genuine end is to preserve the law from
violence, and to defend the subject ; — he is
the people's debtor for all happiness possi-
ble to be procured by God's sword, either in
peace or war, at home or abroad. For the
assumption is evident. An absolute and
arbitrary power is a king-law, such as roy-
alists say God gave to Saul (1 Sam. viii.
9, 11 ; x. 25) to play the tyrant ; and this
power, arbitrary and unlimited, above all
laws, is that which, (1.) Is given to God;
(2.) Distinguisheth essentially the kings of
Israel from the judge, saith Barclary, Gro-
tius, Arnisasus; (3.) A constitutive form of
a king, therefore it must be actu primo, a
benefit, and a blessing of God ; but if God
104
LEX, REX I OR,
hath given any such power absolute to a
king : as, 1. His will must be a law, either
to do or suffer all the tyranny and cruelty
of a tiger, a leopard, a Nero, or a Julian ;
then hath God given, actu primo, a power
to a king, as king, to enslave the people
and flock of God, redeemed by the blood of
God, as the slaves among the Romans and
Jews, who were so under their masters, as
their bondage was a plague of God, and the
lives of the people of God under Pharaoh,
who compelled them to work in brick and
clay. 2. Though he cut the throats of the
people of God, as the lioness Queen Mary
did, and command an army of soldiers to
come and burn the cities of the land, and
kill man, wife, and children ; yet in so do-
ing, he doth the part of a king, so as you
cannot resist him as a man, and obey him
as a king, but must give your necks to him,
upon this ground, because this absolute
power of his is ordained of God ; and there
is no power even to kill and destroy the in-
nocent , but it is of God. So saith Paul,
Rom. xiii., if we believe court-prophets, or
rather lying-spirits, who persuade the king
of Britain to make war against his three
dominions. Now, it is clear that the dis-
tinction of bound and free continued in Is-
rael even under the most tyrannous kings;
(2 Kings iv. 1 ;) yea, even when the Jews
were captives under Ahasuerus. (Esth. vii.
4.) And what difference should there be
between the people of God under their
own kings, and when they were captives
under tyrants, serving wood and stone, and
false gods, as was threatened as a curse in
the law? (Deut. xxviii. 25, 36, 64, 68.)
If their own lungs, by God's appointment,
have the same absolute power over them,
and if he be a tyrant, actu primo, that is,
if he be indued with absolute power, and so
have power to play the tyrant, then must
the people of God be actu primo, slaves,
and under absolute subjection ; for they are
relatives, as lord and servant, conqueror and
captive. It is true, they say, kings by office
are fathers, they cannot put forth in action
their power to destroy. I answer, it is their
goodness of nature that they put not forth
in action all their absolute power to destroy,
which God hath given them as kings, and
therefore, thanks are due to their goodness,
for that they do not, actu secundo, play the
tyrant ; for royalists teach, that by virtue of
their office God hath given to them a royal
power to destroy ; therefore, the Lord's
people are slaves under them, though they
deal not with them as slaves, but that hin-
dereth not but the people by condition are
slaves. So many conquerors of old did deal
kindly with their slaves whom they took in
war, and dealt with them as sons ; but as
conquerors they had power to sell them, to
kill them, to put them to work in brick and
clay. So say I here, royal power and a
king cannot be a blessing, and actu primo
a favour of God to the people, for the which
they are to pray when they want a king
that they may have one, or to praise God
when they have one. But a king must be
a curse and a judgment, if he be such a
creature as essentially, and in the intention
and nature of the thing itself, hath by office
a royal power to destroy, and that from
God ; for then the people praying — " Lord
give us a king," should pray, " Make us
slaves, Lord ; take our liberty and power from
us, and give a power unlimited and absolute
to one man, by which he may, if he please,
waste and destroy us, as all the bloody em-
perors did the people of God." Surely, I
see not but they should pray for a tempta-
tion, and to be led into temptation when
they pray God to give them a king; and,
therefore, such a power is a vain thing.
Arg. 5. — A power contrary to justice,
to peace and the good of the people, that
looketh to no law as a rule, and so is un-
reasonable, and forbidden by the law of God
and the civil law, (L. 15. filius de condit.
Instit.,) cannot be lawful power, and cannot
constitute a lawful judge ; but an absolute
and unlimited power is such. How can the
judge be the minister of God for good to
the people (Rom, xiii, 4) if he have such
a power as a king, given him of God, to
destroy and waste the people ?
Arg, 6. An absolute power is contrary to
nature, and so unlawful ; for it maketh the
people give away the natural power of de^
tending their life against illegal and cruel
violence, and maketh a man who hath need
to be ruled and lawed by nature above all
rule and law, and one who, by nature, can
sin against his brethren such a one as can-
not sin against any but God only, and mak-
eth him a lion and an unsocial man. What
a man is Nero, whose life is poetry and
painting ! Domitian, only an archer ; Va<-
lentinian, only a painter ; Charles IX. of
France, only a hunter ; Alphonsus Dux
Ferrariensis, only an astronomer ; Philip
of Macedonia, a musican ; and all because
THE LAW AND THE P1UXCE.
105
they are kings. This our king denieth,
when he saith, (art. 13,) " There is power
legally placed in the parliament more than
sufficient to prevent and restrain the power
of tyranny." But if they had not power to
play the lions, it is not much that kings are
musicians, hunters, &c.
Arg. 7. — God, in making a king to pre-
serve his people, should give liberty without
all politic restrain, for one man to destroy
many, which is contrary to God's end in the
fifth commandment, if one have absolute
power to destroy souls and bodies of many
thousands.
Arg. 8. — If the kings of Israel and Ju-
dah were under censures and rebukes of the
prophets, and sinned against God and the
people in rejecting these rebukes, and in
persecuting the prophets, and were under
this law not to take their neighbour's wife,
or his vineyard from him against his will ;
and the inferior judges were to accept the
persons of none in judgment, small or great ;
and if the king yet remain a brother, not-
withstanding he be a king, then is his power
not above any law, nor absolute. For what
reason ? — 1. He should be under one law of
God to be executed by men, and not under
another law ? Royalists are to show a differ-
rence from God's word. 2. His neighbours,
brother, or subjects, may by violence keep
back their vineyards, and chastity from the
king. Naboth may by force keep his own
vineyard from Achab. By the laws of Scot-
land, if a subject obtain a decree of the
king, of violent possession of the heritages
of a subject, he hath by law power to cast
out, force, apprehend, and deliver to prison
those who are tenants, brooking these lands
by the king's personal commandment. If
a king should force a damsel, she may vio-
lently resist, and by violence, and bodily op-
posing of violence to violence, defend her
own chastity. Now, that the prophets have
rebuked kings is evident : Samuel rebuked
Saul, Nathan David, Elias king Achab ;
Jeremiah is commanded to prophecy against
the kings of Judah, (Jer. i. 18,) and the pro-
phets practised it. (Jer. xix. 3 ; xxi. 2 ; xxii.
13 — 15; Hos. v. 1.) Kings are guilty be-
fore God because they submitted not their
royal power and greatness to the rebukes of
the prophets, but persecuted them.
Deut. xvii. 20, The king on the throne
remaineth a brother; Psal. xxii. 22, and
so the judges or three estates are not to ac-
cept of the pei'son of the king for his great-
ness in judgment; Deut. i. 16, 17, and the
judge is to give out such a sentence in judg-
ment as the Lord, with whom there is no
iniquity, would give out if the Lord himself
were sitting in judgment; because the judge
is in the very stead of God, as his lieutenant;
(2 Chron. xix. 6, 7; Psal. Lxxxii. 1, 2;
Deut. i. 17 ;) and with God there is no re-
spect of persons. (2 Chron. xix. 7 ; 1 Pet.
i. 17 ; Acts x. 34.) I do not intend that
any inferior judge sent by the king is to
judge the king ; but those who gave him
the throne, and made him king, are truly
above him, and to judge him without respect
of persons, as God himself would judge if
he were sitting on the bench.
God is the author of civil laws and go-
vernment, and his intention is therein the
external peace, and quiet life, and godliness
of his church and people, and that all judges,
according to their places, be nurse-fathers
to the church. (Isa. xlix. 23.) Now God
must have appointed sufficient means lor
tins end; but there is no sufficient means
at all, but a mere anarchy and confusion,
if to one man an absolute and unlimited
power be given of God, whereby, at his
pleasure, he may obstruct the fountains of
justice, and command lawyers and laws to
speak not God's mind, that is justice, right-
eousness, safety, true religion, but the sole
lust and pleasure of one man. And this
one having absolute and irresistible influ-
ence on all the inferior instruments of jus-
tice, may, by this power, turn all into an-
archy, and put the people in a worse condi-
tion than if there were no judge at all in
the land. For that of politicians, that ty-
ranny is better than anarchy, is to be taken
cum grano salts ; but I shall never believe
that absolute power of one man, which is
actu primo tyranny, is God's sufficient way
of peaceable government. Therefore, Bar-
claius1 saith nothing for the contrary, when
he saith, " The Athenians made Draco and
Solon absolute law-givers, for, a facto ad
jus non valet consequentia." What if a
roving people, trusting Draco and Solon to
be kings above mortal men, and to be gods,
gave them power to make laws, written not
with ink, but with blood, shall other kings
have from God the like tyrannical and bloody
power from that to make bloody laws ?
Chytreus (lib. 2) and Sleidan citeth it, (1.
2 Barclaius contra Monarch, lib. 2, p. 76, 77
Q
106
LEX, REX ; OR,
1 ;) Sueron, Sub ptena periwrii non tenen-
tur fidtm sevare regi degeniri.
Arg. 9.— He who is regulated by law,
and sweareth to the three estates to be re-
gulated by law, and accepteth the crown
covenant-wise, and so as the estates would
refuse to make him their king, if either he
should refuse to swear, or if tliey did be-
lieve certainly that he would break his oath,
hath no unlimited and absolute power from
God or the people ; for, fcedus conditiona-
tizm, aut promissio conditionalis mutua,
facit jus alteri in alterum, a mutual condi-
tional covenant giveth law and power over
one to another. But, from that which hath
been said, the king sweareth to the three
estates to be regulated by law — he accepteth
the crown upon the tenor of a mutual cove-
nant, &c. ; for if he should, as king, swear
to be king, that is, one who hath absolute
power above a law, and also to be regulated
by a law, he should swear things contra-
dictory, that is, that he should be their
king, having absolute power over them, and
according to that power to rule them ; and
he should swear not to be their king, and
to rule them, not according to absolute
power, but according to law. If, therefore,
this absolute power be essential to a king,
as a king, no king can lawfully take the
oath to govern according to law, tor then he
should swear not to reign as king, and not
be their king; for how could he be then-
king, wanting that which God hath made
essential to a king as a king ?
QUESTION XXIII;
WHETHER THE KING HATH ANY ROYAL PRERO-
GATIVE, OR A POWER TO DISPENSE WITH
LAWS ; AND SOME OTHER GROUNDS AGAINST
ABSOLUTE MONARCHY.
A prerogative royal I take two ways :
cither to be an act of mere will and plea-
sure above or beside reason or law, or an
act of dispensation beside or against the
letter of the law.
Assert. 1. — That which royalists call the
prerogative royal of princes is the salt of
absolute power ; and it is a supreme and
highest power of a king, as a king, to do
nbovo, without or contrary to a law or rea-
son, which is unreasonable. 1. When God's
word speaketh of the power of kings and
judges, Deut. xvii. 15 — 17 ; i. 15 — 17, and
elsewhere there is not any footstep or any
ground for such a power ; and, therefore,
(if we speak according to conscience,) there
is no such thing in the world ; and because
royalists cannot give us any warrant, it is
to be rejected. 2. A prerogative royal
must be a power of doing good to the peo-
ple, and grounded upon some reason or law ;
but this is but a branch of an ordinary li-
mited power, and no prerogative above or
beside law ; yea, any power not grounded
on a reason different from mere will or ab-
solute pleasure is an irrational and brutish
power ; and, therefore, it may well be jus
personve, the power of the man who is king;
it cannot be jus coronce, any power annexed
to the crown ; for this holdeth true of all the
actions of the king, as a king, Mud potest
rex, et Mud tantum quod jure potest. The
king, as king, can do no more than that
which upon right and law he may do. 3.
To dispute this question, whether such a
prerogative agree to any king, as king, is to
dispute whether God hath made all under
a monarch slaves by their own consent ;
which is a vain question. Those who hold
such a prerogative, must say the king is so
absolute and unlimited a god on earth, that
either by law, or his sole pleasure beside
law, he may regularly and rationally move
all wheels in policy ; and his uncontrolled
will shall be the axletree on which all the
wheels are turned; 4. That which is the
garland and pi'oper flower of the King of
kings, as he is absolute above his creatures,
and not tied to any law, without himself,
that regulateth his will, that must be given
to no mortal man or king, except we would
communicate that which is God's proper
due to a sinful man, which must be idola-
tory. But to do royal acts out of an abso-
lute power above law and reason, is such a
power as agreeth to God, as is evident in
positive laws and in acts of God's mere
pleasure, where we see no reason without
the Almighty for the one side rather than
for the other, as God's forbidding the eat-
ing of the tree of knowledge maketh the
eating sin and contrary to reason; but
there is no reason in the object ; for if God
should command eating of that tree, not to
eat should also be sin. So God's choosing
Peter to glory and his refusing Judas, is a
good and a wise act, but not good or wise
THE LAW AND THE PRINCE.
107
from the object of the act, but from the sole
wise pleasure of God ; because, if God had
chosen Judas to glory and rejected Peter,
that act had been no less a good and a wise
act than the former. For when there is
no law in the object but only God's will,
the act is good and wise, seeing infinite
wisdom cannot be separated from the per-
fect will of God ; but no act of a mortal king,
i having sole and only will, and neither law
nor reason in it, can be a lawful, a wise, or
a good act.
Assert. 2. — There is something which
may be called a prerogative by way of dis-
pensation. There is a threefold dispensa-
tion,— one of power, another of justice, and
a third of grace. 1. A dispensation of power
is when the will of the law-giver maketh
that act to be no sin, which without that
will would have been sin, — as if God's com-
manding will had not intervened, the Israel-
ites borrowing the ear-rings and jewels of
the Egyptians, and not restoring them, had
been a breach of the eighth commandment ;
and in this sense no king hath a prerogative
to dispense with a law. 2. There is a dis-
pensation of law and justice not flowing from
any prerogative, but from the true intent of
the law ; and thus the king, yea, the inferior
judge, is not to take the life of a man whom
the letter of the law would condemn, be-
cause the justice of the law is the intent and
life of the law ; and where nothing is done
against the intent of the law, there is no
breach of any law, 3, The third is not un-
like unto the second, when the king expon-
eth the law by grace, and this is twofold :
(1.) Either when he exponeth it of his wis-
dom and merciful nature, inclined to mercy
and justice, yet, according to the just in-
tent, native sense, and scope of the law,
considering the occasion, circumstances of
the fact, and comparing both with the law, —
and this dispensation of grace I grant to
the king, as when the tribute is great and
the man poor, the king may dispense with
the custom.* (2.) The law saith, in a
doubtful case the prince may dispense, be-
cause it is presumed the law can have no
sense against the principal sense and intent
of the law.
But there is another dispensation that
royalists do plead for, and that is, a power
l In re dubia possunt dispensare principes, quia
nullns sensus presumitur, qui vincat principalem,
lib. 1, sect, initium ib.
in the king, c.c mera gratia absolute po-
testatis rcgalis, out of mere grace of abso-
lute royal power to pardon crimes which
God's law saith should be punished by death.
Now, this they call a power of grace ; — but
it is not a power of mere grace.
1, Though princes may do some things
of grace, yet not of mere grace ; because
what kings do as kings, and by virtue of
their royal office, that they do ex debito
officii, by debt and right of their office; and
that they cannot but do, it not being arbi-
trary to them to do the debtful acts of their
office : but what they do of mere grace, that
they do as good men, and not as kings, and
that they may not do. As, for example,
some kings, out of their pretended preroga-
tive, have given four pardons to one man Tor
four murders. Now this the king might
have left undone without sin, but of mere
grace he pardoned the murderer who killed
four men, But the truth is, the king killed
the three last, because he hath no power in
point of conscience to dispense with blood,
Num. xxxv, 3J ; Gen. ix. 6. These par-
dons are acts of mere grace to one man, but
acts of blood to the community.
2. Because the prince is the minister of
God for the good of the subject; and there-
fore the law saith, " He cannot pardon and
free the guilty of the punishment due to
him ; (Contra I. quod favor e, F. de leg. I.
non ideo minus, F. deproc, I. legata inuti-
liter, F. de lega. 1 ; ) and the reason is clear :
He is but the minister of God, a revenger
to execute wrath upon him that doth evil.
And if the judgment be the Lord's, not
man's, not the king's, as it is indeed, (Deut.
i. 17 ; 2 Chron. xix. 6,) he cannot draw the
sword against the innocent, nor absolve the
guilty, except he would take on himself to
carve and dispose of that which is proper to
his master. Now certain it is, God only,
uni vocally and essentially as God, is the
judge, (Psal. lxxv. 7,) and God only and
essentially king, (Psal. xcvii. 1 ; xcix. 1,)
and all men in relation to him are mere
ministers, servants, legates, deputies ; and
in relation to him, equivocally and impro-
perly, judges or kings, and mere created
and breathing shadows of the power of the
King of kings. And look, as the scribe
following his own device, and writing what
sentence he pleaseth, is not an officer of the
court in that point, nor the pen and servant
of the judge, so are kings and all judges
but forged intruders and bastard kings and
108
LEX, REX ; OR,
judges, in so far as they give out the sen-
tences of men, and are not the very mouths
of the King of kings to pronounce such a
sentence as the Almighty himself would do,
if he were sitting on the throne or bench.
3. If the king, from any supposed prero-
gative royal, may do acts of mere grace
without any warrant of law, because he is
above law by office, then also may he do
acts of mere rigorous justice, and kill and de-
stroy the innocent, out of the same supposed
prerogative ; for God's word equally tyeth
him to the place of a mere minister in doing
good, as in executing wrath on evil-doers,
Rom. xiii. 3, 4. And reason would say, he
must be as absolute in the one as in the
other, seeing God tyeth him to the one as
to the other, by his office and place ; yea,
by this, acts of justice to ill-doers, and acts
of reward to well-doers, shall be arbitrary
morally, and by virtue of office to the king,
and the word prerogative royal saith this ;
for the word prerogative is a supreme power
absolute that is loosed from all law, and so
from all reason of law, and depending on
the king's mere and naked pleasure and
will ; and the word royal or kingly is an
epithet of office and of a judge, — a created
and limited judge, and so it must tie this
supposed prerogative to law, reason, and to
that which is debitum ler/ale officii and a
legal duty of an office ; and by this our mas-
ters, the royalists, make God to frame a
rational creature, which they call a king, to
frame acts of royalty, good and lawful, upon
his own mere pleasure and the super-domi-
nion of his will above a law and reason.
And from this it is that deluded counsellors
made king James (a man not of shallow un-
derstanding) and king Charles to give par-
dons to such bloody murderers as James a
Grant ; and to go so far on, by this supposed
prerogative royal, that king Charles in par-
liament at Edinburgh, 1633, did command
an high point of religion : — that ministers
should use, in officiating in God's service,
such habits and garments as he pleaseth,
that is, all the attire and habits of the ido-
latrous mass-priests that the Romish priests
of Raal useth in the oddest point of idola-
try (the adoring of bread) that the earth
has ; and by this prerogative the king com-
manded the Service Book in Scotland, anno
1637, without or above law and reason.
And I desh-e any man to satisfy me in this,
if the king's prerogative royal may over-
leap law and reason in two degrees, and if
he may as king, by a prerogative royal,
command the body of popery in a popish
book ; — if he may not, by the same reason,
over-leap law and reason by the elevation of
twenty degrees ; — and if you make the king
a Julian, (God avert, and give the spirit of
revelation to our king,) may he not com-
mand all the Alkoran and the religion of
the heathen and Indians? Royalists say
the prerogative of royalty excludeth not
reason, and maketh not the king to do as a
brute beast, without all reason, but it giv-
eth a power to a king to do by his royal
pleasure, not fettered to the dictates of a
law ; for in things which the king doth by
his prerogative royal he is to follow the ad-
vice and counsel of his wise council, though
their counsel and advice doth not bind the
royal will of the king.
Ans. 1. — I answer, it is to me, and I am
sure to many more learned, a great ques-
tion,— if the will of any reasonable creature,
even of the damned angels, can will or
choose anything which their reason, cor-
rupted as it is, doth not dictate hie et nunc
to be good ? For the object of the will of
all men is good, either truly, or apparently
good to the doer ; for the devil could not
suit in marriage souls except he war in the
clothes of an angel of light ; sin, as sin, can-
not sell, or obtrude itself upon any, but
under the notion of good. I think it seem-
eth good to the great Turk to command
innocent men to cast themselves over a
precipice two hundred fathoms high into
the sea, and drown themselves to pleasure
him ; so the Turk's reason (for he is ra-
tional, if he be a man) dictateth, to his vast
pleasure, that that is good which he com-
mandeth.
2. Counsellors to the king, who will
speak what will please the queen, are but
naked empty titles, for they speak que
placent, non que prosunt, what may please
the king whom they make glad with their
lies, not what law and reason dictateth.
3. Absoluteness of an unreasonable pre-
rogative doth not deny counsel and law
also, for none more absolute, de facto, I
cannot say de jure, than the kings of Baby-
lon and Persia ; for Daniel saith of one of
them, (Dan. v. 19,) " Whom he would he
slew, and whom he would he kept alive, and
whom he would he set up, and whom he
would he put down ;" and yet these same
kings did nothing but by advice of their
princes and counsellors ; yea, so as they could
THE LAW AND THE PRINCE.
109
not alter a decree and* law, as is clear;
(Esth. i. 14 — 17, 21) yea, Darius, de facto,
an absolute prince, was not able to deliver
Daniel, because the law was passed; that he
should be cast into the lions' den. (Dan.
vi. 14—16.)
4. That which the Spirit of God condem-
neth as a point of tyranny in Nebuchad-
nezzar, is no lawful prerogative royal ; but
the Spirit of God condemneth this as tyranny
in Nebuchadnezzar, — that he slew whom he
would, he kept alive whom he would, he set
up whom he would, he put down whom he
would. This is too God-like. (Deut, xxxii.
39.) So Polanus1 and Rollocus2 on the place
say, he did these things, (ver 19,) Ex
abusu legitimes potestatis ; for Nebuchad-
nezzar's will, in matters of death and life,
was his law, and he did what pleased him-
self, above all law, beside and contrary to
it. And our flatterers of kings draw the
king's prerogative out of Ulpian's words, who
saith, " That is a law which seemeth good
to the prince;" but Ulpian was far from
making the prince's will a rule of good and
ill; for he saith the contrary, " That the
law ruleth the just prince."
5. It is considerable here, that Sanches3
defmeth the absolute power of kings to be
a plenitude and fulness of power, subject to
no necessity, and bounded with rules of no
public law; and so did Baldus4 before him.
But all politicians condemn that of Caligula,
(as Suetonius saith,5) which he spake to
Alexander the Great, " Remember that
thou must do all things, and that thou hast
a power to do to all men what thou pleasest."
And lawyers say, that this is tyranny.
Chilon, one of the seven wise of Greece, (as
Rodigi,6) saith better, " Princes are like gods,
because they only can do that which is just ;
and this power, being merely tyrannical, can
be no ground of a royal prerogative. There
is another power (saith Sanches) absolute,
by which a prince dispenseth without a cause
in a human law ; and this power, saith he,
may be defended. But he saith, what the
king doth by this absolute power he doth it
i Polanus in Daniel, c. 5, 19.
2 Rollocus, com. 16, ib.
3 Th. Sanches de matr. torn. 1, lib. 2, dis. 15, n.
3, est arbitrii plenitudo, nulli necessitati subjecta,
nulliusq. ; publici juris regulis limitata.
4 Baldus, lib. 2, n. 40, C. de servit. et aqua.
B Suetoni. in Calign. cap. 29, memento tibi omnia,
et in omnes licere.
6 Cselius Rodigi, lib. 8, Lect. Antiq. c. 1.
valide, validly, but not jure, by law ; but by j
valid acts the Jesuit must mean royal acts.
But no acts void of law and reason (say we)
can be royal acts ; for royal acts are acts
performed by a king, as a king, and by a law,
and so cannot be acts above or beside a law.
It is true a king may dispense with the
breach of a human law, as a human law,
that is, if the law be death to any who
goeth upon the walls of the city, the king-
may pardon any, who, going up, discovereth j
the enemies approach, and saveth the city.
But, 1. The inferior judge according to
the \xuxilx that benign interpretation that
the soul and intent of the law requireth,
may do this as well as the king. 2. All
acts of independent prerogative are above
a law, and acts of free will having no cause
or ground in the law, otherwise it is not
founded upon absolute power, but on power
ruled by law and reason. But to pardon a
breach of the letter of the law of man by
exponing it according to the true intent of
the law, and benignly, is an act of legal ob-
ligation, and so of the ordinary power of all
judges ; and if either king or judge kill a
man for the violation of the letter of the
law, when the intent of the law contradict-
eth the rigid sentence, he is guilty of in-
nocent blood. If that learned Ferdinandus
Vasquez be consulted, he is against this
distinction of a power ordinary and extra-
ordinary in men ; and certainly, if you give
to a king a prerogative above a law, it is a
power to do evil as well as good ; but there
is no lawful power to do evil ; and Dr Feme
is plunged in a contradiction by this, for he
saith, (sect. 9, p. 58,) " I ask when these
emperors took away lives and goods at plea-
sure ? Was that power ordained by God ?
No ; but an illegal will and tyranny ; but
(p. 61) the power, though abused to execute
such a wicked commandment, is an ordi-
nance of God."
06;. 1. — For the lawfulness of an absolute
monarchy, — the Eastern, Persian, and Turk-
ish monarchy maketh absolute monarchy law-
ful, for it is an oath to a lawful obligatory
thing ; and judgment (Ezek. xvii. 16, 18) is
denounced against Judah for breaking the
oath of the king of Babylon, and it is called
the oath of God, and doubtless was an oath
of absolute subjection ; and the power (Rom.
xiii.) was absolute, and yet the apostle
calleth it an ordinance of God. The so-
1 Vasquez, illust. quest, lib. 1, c. 26, n. 2.
110
LEX, REX
vereignty of masters over servants was ab-
solute, and the apostle exhorteth not to re-
nounce that title as too rigid, but exhorteth
to moderation in the use of it.
Ans. 1. — That the Persian monarchy
was absolute is but a facto ad jus, and no
rule of a lawful monarchy ; but that it was
absolute, I believe not. Darius, who was an
absolute prince, as many think, but I think
not, would gladly have delivered Daniel
from the power of a law, (Dan. vi. 14,) " And
he set his heart on Daniel to deliver him,
and he laboured till the going down of the
sun to deliver him," and was so sorrowful
that he could not break through a law, that
he interdicted himself of all pleasures of
musicians ; and if ever he had used the ab-
soluteness of a prerogative royal, I con-
ceive he would have done it in this, yet he
could not prevail. But in things not estab-
lished by law I conceive Darius was abso-
lute, as to me is clear, (Dan vi, 24,) but ab-
solute not by a divine law, but de facto,
quod tmnsierat in jus humanum, by fact,
which was now become a law.
2. It was God's oath, and God tied
Judah to absolute subjection, therefore,
people may tie themselves. It followeth not,
except you could make good this inference :
1. God is absolute, therefore the king of
Babylon may lawfully be absolute. This is a
blasphemous consequence. 2. That Judah
was to swear the oath of absolute subjection
in the latitude of the absoluteness of the
kings of Chaldea, I would see proved. Their
absoluteness by the Chaldean laws was to
command murder, idolatry, (Dan. iii. 4, 5,)
and to make wicked laws. (Dan. vi. 7, 8.)
I believe Jeremiah commanded not absolute
subjection in this sense, but the contrary.
(Jer. x. 11.) They were to swear the oath
in the point of suffering ; but what if the
king of Chaldea had commanded them all,
the whole holy seed, men, women and chil-
dren, out of his royal power, to give their
necks all in one day to his sword, were
they obliged by this oath to prayers and
tears, and only to suffer ? and was it
against the oath of God to defend them-
selves by arms? I believe the oath did
not oblige to such absolute subjection, and
though they had taken arms in their own
lawful defence, according to the law of na-
ture, they had not broken the oath of God.
The oath was not a tie to an absolute subjec-
tion of all and every one, either to worship
idols, or then to fly or suffer death. Now,
the Service Book commanded, in the king's
absolute authority, all Scotland to commit
grosser idolatry, in the intention of the
work, if not in the intention of the com-
mander, than was in Babylon. We read not
that the king of Babylon pressed the con-
sciences of God's people to idolatry, or that
all should either fly the kingdom, and leave
their inheritances to papists and prelates, or
then come under the mercy of the sword of
papists and atheists by sea or land. 3. God
may command against the law of nature,
and God's commandment maketh subjection
lawful, so as men may not now, being under
that law of God, defend themselves. What
then ? Therefore we owe subjection to ab-
solute princes, and their power must be a
lawful power, it nowise is consequent. God's
commandment by Jeremiah made the sub-
jection of Judah lawful, and without that
commandment they might have taken arms
against the king of Babylon, as they did
against the Philistines ; and God's com-
mandment maketh the oath lawful. As
suppose Ireland would all rise in arms,
and come and destroy Scotland, the king of
Spain leading, then we were by this argu-
ment not to resist. 4. It is denied, that
the power, (Rom. xiii.,) as absolute, is God's
ordinance. And I deny utterly that Christ
and his apostles did swear non-resistance
absolute to the Roman emperor.
Obj. 2.— It seemeth, (1 Pet. ii. 18, 19,)
if well-doing be mistaken by the reason and
judgment of an absolute monarch for ill-
doing, and we punished, yet the magistrate's
will is the command of a reasonable will,
and so to be submitted unto ; because such a
one suffereth by law, where the monarch's
will is a law, and in this case some power
must judge. Now in an absolute monarchy
all judgment resolveth in the will of the
monarch, as the supreme law ; and if an-
cestors have submitted themselves by oath,
there is no repeal or redressment.
Ans. — Whoever was the author of this
treatise he is a bad defender of the defen-
sive wars in England, for all the lawfulness
of wars then must depend on this : 1.
Whether England be a conquei'ed nation at
the beginning? 2. If the law -will of an
absolute monarch, or a Nero, be a reason-
able will, to which we must submit in suf-
fering ill, I see not but we must submit to
a reasonable will, if it be reasonable will in
doing ill, no less than in suffering ill. 3.
Absolute will in absolute monarchies is no
THE LAW AND THE PRINCE.
Ill
judge de jure, but an unlawful and a usurp-
ing judge. (1 Pet. ii. 18, 19.) Servants are
not commanded simply to suffer. (I can
prove suffering formally not to fall under
any law of God, but only patient suffering.
I except Christ, who was under a peculiar
commandment to suffer.) But servants,
upon supposition that they are servants, and
buffeted unjustly by their masters, are, by
the apostle Peter, commanded (vei\ 20) to
suffer patiently. But it doth not bind up a
servant's hand to defend his own life with
weapons if his master invade him, without
cause, to kill him ; otherwise, if God call him
to suffer, he is to suffer in the manner and
way as Christ did, not reviling, not threa-
tening. 4. To be a king and an absolute
master to me are contradictory. A king es-
sentially is a living law ; an absolute man is
a creature that they call a tyrant, and no
lawful king. Yet do I not mean that any
that is a king, and usurpeth absoluteness,
leaveth off to be a king ; but in so far as he
is absolute he is no more a king than in so
far as he is a tyrant. But further, the king
of England saith in a declaration ■, 1. The
law is the measure of the king's power; 2.
Parliaments are essentially lord-judges, to
make laws essentially, as the king is, there-
fore, the king is not above the law. 3.
Magna Charta, saith the king, can do no-
thing but by laws, and no obedience is due
to him but by law. 4. Prescriptions taketh
away the title of conquests.
Obj. 3. — The king, not the parliament,
is the anointed of God.
Ans.— The parliament is as good, even a
congregation of gods. (Ps. lxxxii. 6.)
Obj. 4. — The parliament in the court, in
their acts, they say, with consent of our so-
vereign lord.
Ans. — They say not at the command-
ment and absolute pleasure of our sovereign
lord. He is their lord materially, not as
they are formally a parliament, for the king
made them not a parliament; but sure I am
the parliament had power before he was
king, and made him king. (1 Sam. x. 17,
18.5
Obj. 5. — In an absolute monarchy there
is not a resignation of men to any will as
will, but to the reasonable will of the mo-
narch, which, having the law of reason to
direct it, is kept from injurious acts.
Ans. — If reason be a sufficient restraint,
and if God hath laid no other restraint upon
some lawful king, then is magistracy a lame,
a needless ordinance of God ; for all man-
kind hath reason to keep themselves from
injuries, and so there is no need of judges
or kings to defend them from either doing
or suffering injuries. But certainly this
must be admirable, — if God, as author of
nature, should make the lion king of all
beasts, the lion remaining a devouring beast,
and should ordain by nature all the sheep
and lambs to come and submit their bodies
to him, by instinct of nature, and to be
eaten at his will, and then say, the nature
of a beast in a lion is a sufficient restraint
to keep the lion from devouring lambs.
Certainly, a king being a sinful man, and
having no restraint on his power but rea-
son, he may think it reason to allow rebels
to kill, drown, hang, torture to death, an
hundred thousand protestants, men, wo-
men, infants in the womb, and sucking
babes, as is clear in Pharaoh, Manasseh^
and other princes.
Obj. 6. — There is no court or judge above
the king, therefore he is absolutely supreme.
Ans. — The antecedent is false. 1. The
court that made the king of a private man
is above him ; and here are limitations laid
on him at his coronation. 2. The states of
parliament are above him, to censure him.
3. In case of open tyranny, though the
states had not time to convene in parlia-
ment, if he bring on his people an host of
Spaniards or foreign rebels, his own con-
science is above him, and the conscience of
the people far more, called conscientia ter-
ra, may judge him in so far as they may
rise up and defend themselves.
Obj. 7.— Here the Prelate, (c. 14, p.
144,) borrowing from Grotius, Barclay,
Arniseeus, (or it is possible he be not so far
travelled, for Dr Feme hath the same,)
" Sovereignty weakened in aristocracy can-
not do its work, and is in the next place to
anarchy and confusion. When Zedekiah
was overlorded by his nobles, he could nei-
ther save himself nor the people, nor the
prophet, the servant of God, Jeremiah ;
nor could David punish Joab when he was
overawed by that power he himself had put
in his head. To weaken the hand is to
distemper the whole body ; if any o-ood
prince, or his royal ancestors, be cheated of
their sacred right by fraud or force, he may,
at his fittest opportunity, resume it. What
a sin it is to rob God or the kino- of their
due!"
Ans. — Aristocracy is no less an ordinance
112
LEX, REX ; OR,
of God than royalty, for (Rom. xiii. 1, and
1 Tim. ii.) — 1. All in authority are to be
acknowledged as God's vice-regents, the se-
nate, the consuls, as well as the emperor ;
and so one ordinance of God cannot weaken
another, nor can any but a lawless animal
say, aristocracy bordereth with confusion ;
but he must say, order and light are sis-
ter-germans to confusion and darkness. 2.
Though Zedekiah, a man void of God, was
over-awed by his nobles, and so could not
help Jeremiah, it followeth not that because
kings may not do this and this good, there-
fore they are to be invested with power to
do all ill : if they do all the good that they
have power to do, they will find way to help
the oppressed Jeremiahs, And, because
power to do both good and evil is given by
the devil to our Scottish witches, it is a poor
consequent that the states should give to the
king power absolute to be a tyrant. 3. A
state must give a king more power than or-
dinary, especially to execute laws, which re-
quireth singular wisdom, when a prince
cannot always have his great council about
with him to advise him. 1. That is power
borrowed, and by loan, and not properly his
own ; and therefore it is no sacrilege in the
states to resume what the king hath by a
fiduciary title, and borrowed from them. 2.
This power was given to do good, not evil,
i David had power over Joab to punish him
| for his murder, but he executed it not upon
I carnal fears, and abused his power to kill
innocent Uriah, which power neither God
nor the states gave him. But how proveth
he the states took power from David, or
that Joab took power from David to put to
death a murderer ? That I see not. 3. If
princes' power to do good be taken from
them, they may resume it when God giveth
opportunity ; but this is to the Prelate per-
jury, that the people by oath give away
their power to their king and resume it
when he abuseth it to tyranny. But it is no
perjury in the king to resume a taken-away
power, which, if it be his own, is yet lis sub
judice, a great controversy, Quod in Cajo
; licet, in Nevio non licet. So he teacheth
the king that perjury and sacrilege is lawful
to him. If princes' power to do ill and cut
the whole land off as one neck, (which was
the wicked desire of Caligula,) be taken from
them by the states, I am sure this power
was never theirs, and never the people's ;
i and you cannot take the prince's power
from him which was never his power. I
am also sure the prince should never re-
sume an unjust power, though he were
cheated of it.
P. Prelate. — It is a poor shift to acknow-
ledge no more for the royal prerogative
than the municipal law hath determined, as
some smatterers in the law say. They can-
uot distinguish betwixt a statute declara-
tive and a statute constitutive ; but the sta-
tutes of a kingdom do declare only what is
the prerogative royal, but do not constitute
or make it. God Almighty hath by himself
constituted it. It is laughter to say the de-
calogue was not a law till God wrote it.
Ans. — Here a profound lawyer calleth
all smatterers in the law, who cannot say
that non ens, a prerogative royal, that is, a
power contrary to God and man's law to
kill and destroy the innocent, came not im-
mediately down from heaven. But I pro-
fess myself no lawyer; but do maintain
against the Prelate that no municipal law
can constitute a power to do ill, nor can
any law either justly constitute or declare
such a fancy as a prerogative royal. So far
is it from being like the decalogue, that is,
a law before it be written, that this prero-
gative is neither law before it be written,
nor after court-hunters have written for it ;
for it must be eternal as the decalogue if it
have any blood from so noble a house. In
what scripture hath God Almighty spoken
of a fancied prerogative royal ?
P. Prelate (p. 145). — Prerogative rest-
eth not in its natural seat, but in the king.
God saith, Reddite, not Date, render tic-
kings that which is kings, not give to kings ;
it shall never be well with us if his anointed
and his church be wronged.
Ans. — The Prelate may remember a
country proverb : he and his prelates (called
the church, — the scum of men, not the
church,) are like the tinker's dogs, — they
like good company — they must be ranked
with the king. And hear a false prophet :
It shall never be well with the land while
arbitrary power and popery be erected, saith
he, in good sense.
P. Prelate (c. 16, p. 170, 171).— The
king hath his right from God, and cannot
make it away to the people. Render to Cae-
sar the things that, are Caesar's. Kings'
persons, their charge, their right, their au-
thority, their prerogative, are by Scrip-
tures, fathers, jurists, sacred, inseparable
ordinances inherent in their crowns, — they
cannot be made away ; and when they are
THE LAW AND THE PRINCE,
113
given to inferior judges, it is not ad minu-
endam majestatem, sed solicitudinem, to
lessen sovereign majesty, but to ease them.
Ans. — The king hath his right from God.
What, then not from the people ? I read
in Scripture, the people made the king,
never that the king made the people. All
these are inseparably in the crown, but he
stealeth in prerogative royal, in the clause
which is now in question, " Render to Cae-
sar all Caesar's;" and therefore, saith he,
render to him a prerogative, that is, an ab-
solute power to pardon and sell the blood of
thousands. Is power of blood either the
the king's, or inherent inseparably in his
crown ? Alas ! I fear prelates have made
blood an inseparable accident of his throne.
When kings, by that public power given to
them at their coronation, maketh inferior
judges, they give them power to judge for
the Lord, not for men. (Deut. i, 17; 2 Chron.
xix. 6.) Now, they cannot both make away
a power and keep it also ; for the inferior
judge's conscience hangeth not at the king's
girdle. He hath no less power to judge in
his sphere than the king hath in his sphere,
though the orb and circle of motion be larger
in compass in the one than in the other; and
if the king cannot give himself royal power,
but God and the people must do it, how can
he communicate any part of that power to
inferior judges except by trust ? Yea, he
hath not that power that other men have
in many respects : —
1. He may not marry whom he pleaseth ;
for he might give his body to a leper woman,
and so hurt the kingdom. — 2. He may not
do as Solomon and Ahab, marry the daugh-
ter of a strange god, to make her the mother
of the heir of the crown. He must in this
follow his great senate. He may not expose
his person to hazard of wars. — 3. He may
not go over sea and leave his watch-tower,
without consent. — 4. Many acts of parlia-
ment of both kingdoms discharge papists to
come within ten miles of the king. — 5. Some
pernicious counsellors have been discharged
his company by laws. — 6. He may not eat
what meats he pleaseth. — 7. He may not
make wasters his treasurers. — 8. Nor dila-
pidate the rents of the crown. — 9. He may
not disinherit his eldest son of the crown at
his own pleasure. — 10. He is sworn to follow
no false gods and false religions, nor is it in
his power to go to mass. — 11. If a priest
say mass to the king, by the law he is hang-
ed, drawn and quartered. — 12. He may not
write letters to the Pope, by law. — 13. He
may not, by law, pardon seducing priosts and
Jesuits. — 14. He may not take physic for his
health but from physicians, sworn to be true
to him. — 15. He may not educate his heir
as he pleaseth. — 16. He hath not power of
his children, nor hath he that power that
other fathers have, to marry his eldest son
as he pleaseth. — 17. He may not befriend
a traitor. — 18. It is high treason for any
woman to give her body to the king, except
she be his married wife. — 19. He ought not
to build sumptuous houses without advice of
his council. — 20. He may not dwell con-
stantly where he pleaseth. — 21. Nor may
he go to the countxy to hunt, far less to
kill his subjects and desert the pai-liament.
— 22. He may not confer honours and high
places without his council. — 23. He may not
deprive judges at his will. — 24. Nor is it
in his power to be buried where he pleaseth,
but amongst the kings. Now, in most of
these twenty-four points, private persons
have their own liberty far less restricted
than the king.
QUESTION XXIV.
WHAT POWER THE KING HATH IN RELATION
TO THE LAW AND THE PEOPLE, AND HOW
A KING AND A TYRANT DIFFER.
Mr Symmons saith, (sect. 6, p. 19,) that
authority is rooted rather in the prince than
in the law ; for as the king giveth being to
the inferior judge, so he doth to the law it-
self, making it authorisable ; for propter quod
unum-quodque tale, id ipsum macjis tale,
and therefore the king is greater than the
law : others say, that the king is the foun-
tain of the law, and the sole and only law-
giver.
Assertion First. — 1. The law hath a two-
fold consideration, — (1.) Secundum esse pee-
nale, in relation to the punishment to be in-
flicted by man.1 (2.) Secundum esse legis,
as it is a thing legally good in itself. In the
former notion it is this way true, — human
laws take life and being, so as to be pun-
ished or rewarded by men, from the will of
princes and law-givers ; and so Symmons
saith true, because men cannot punish or re-
ward laws but where they are made ; and
Barclaius, lib. 4, c. 23, p. 325.
R
114 lex, r:
the will of rulers putteth a sort of stamp on
a law, that it bringeth the commonwealth
under guiltiness if they break this law.
But this maketh not the king greater than
the law, for therefore do rulers put the
stamp of relation to punishment on the law,
because there is intrinsical worth in the law
prior to the act of the will of lawgivers for
which it meriteth to be enacted ; and, there-
fore, because it is authorisable as good and
just, the king putteth on it this stamp of a
politic law. God formeth being and moral
aptitude to the end in all laws, to wit, the
safety of the people, and the king's will is
neither the measure nor the cause of the
goodness of kings.
2. If the king be he who maketh the
law good and just, because he is more such
himself, then as the law cannot crook, and
err, nor sin, neither can the king sin, nor
break a law. This is blasphemy; every man
is a liar : a law which deserveth the name
of a law cannot lie.
3. His ground is, that there is such ma-
jesty in kings, that their will must be done
either in us or on us. A great untruth.
Ahab's will must neither be done of Elias,
for he commandeth things unjust, nor yet
on Elias, for Elias fled, and lawfully we may
fly tyrants ; and so Ahab's will in killing
Elias was not done on him.
Assertion Second. — 1. Nor can it be
made good, that the king only hath power
of making laws, because his power were then
absolute to inflict penalties on subjects, with-
out any consent of theirs ; and that were
a dominion of masters, wTho command what
they please, and under what pain they please.
And the people consenting to be ruled by
such a man, they tacitly consent to penalty
of laws, because natural reason saith, an ill-
doer should be punished ,• (Florianus in I.
inde. Vasquez, I. 2, c. 55, n. 3, ) therefore
they must have some power in making these
laws.
2. Jer. xxvi., It is clear the princes judge
with the people. A nomothetic power dif-
fereth gradually only from a judicial power,
both being collateral means to the end of
government, the people's safety. But par-
liaments judge, therefore they have a no-
mothetic power with the king.
3. The parliament giveth all supremacy
to the king, therefore to prevent tyranny,
it must keep a co-ordinate power with the
king in the highest acts.
4. If the kingly line be interruptsd, if
the king be a child or a captive, they make
laws who make kings ; therefore, this nomo-
thetic power recurreth into the states, as to
the first subject.
Obj. — The king is the fountain of the law,
and subjects cannot make laws to themselves
more than they can punish themselves. He
is only the supreme.1
Ans. — The people being the fountain of
the king must rather be the fountain of
laws. It is false that no man maketh laws
to himself. Those who teach others teach
themselves also, (1 Tim. ii. 12 ; 1 Cor. xiv.
34,) though teaching be an act of authority.
But they agree to the penalty of the law
secondarily only ; and so doth the king who,
as a father, doth not will evil of punishment
to his children, but by a consequent will.
The king is the only supreme in the power
ministerial of executing laws ; but this is a
derived power, so as no one man is above
him ; but in the fountain-power of royalty
the states are above him.
5. The civil law is clear, that the laws of
the emperor have force only from this foun-
tain, because the people have transferred
their power to the king. Lib. 1, digest, tit.
4, de constit. Princip. leg. 1, sic Ulpian.
Quod principi placuit, (loquitur de prin-
cipe formaliter, qua princeps est, non qua
est homo,) legis habet vigorem, utpote cum
legi regia, quce de imperio ejus lata est.
populus ei, et in cum, omne suum imperium
et potestatem conferat. Yea, the emperor
himself may be convened before the prince
elector. (Aurea Bulla Carol. 4, Imper.
c. 5.) The king of France may be con-
vened before the senate of Paris. The
states may resist a tyrant, as Bossius saith,
(de principe, et privileg. ejus, n. 55. Pa-
ris de puteo, in tract, syno. tit. de excess,
reg. c. 3.) Divines acknowledge that Elias
rebuked the halting of Israel betwixt God
and Baal, that their princes permitted Baal's
priests to converse with the king. And is
not this the sin of the land, that they suffer
their king to worship idols? And, there-
fore, the land is punished for the sins of
Manasseh, as Knox observeth in his dispute
with Lethington, where he proveth that the
states of Scotland should not permit the
queen of Scotland to have her abominable
mass. (Hist, of Scotland.) Surely the power,
or sea prerogative, of a sleepy or mad pilot,
to split the ship on a rock, as I conceive, is
i Symmons' Loyal Subject, sect. 5, p. 8.
THE LAW AND THE PRINCE.
115
limited by the passengers. Suppose a father
in a distemper would set his own house on
fire, and burn himself and his ten sons, I
conceive his fatherly prerogative, which nei-
ther God nor nature gave, should not be
looked to in this, but they may bind him.
Yea, Althusius (polit. c. 39), answering this,
" That in democracy the people cannot both
command and obey," saith, It is true, secun-
dum idem, ad idem, et eodem tempore. But
the people may (saith he) choose magistrates
by succession. Yea, I say, 1. They may
change rulers yearly to remove envy : a
yearly king were more dangerous, the king
being almost above envy. Men incline more
to flatter than to envy kings. 2. Aristotle
saith, (polit. 1. 4, c. 4, 1. 6, c. 2,) The peo-
ple may give their judgment of the wisest.
Obj. 1. — Williams, bishop of Ossory, in
Vindic. Reg. (a looking-glass for rebels,)
saith, " To say the king is better than any
one, doth not prove him to be better than
two ; and if his supremacy be no more, then
any other may challenge as much, for the
prince is singulis major. A lord is above
all knights ; a knight above all esquires ; and
so the people have placed a king under them,
not above them.
Ans. — The reason is not alike : 1. For
all the knights united cannot make one
lord; and all the esquires united cannot
make one knight ; but all the people united
made David king at Hebron. 2. The king
is above the people, by eminence of derived
authority as a watchman, and in actual su-
premacy ; and he is inferior to them in
fountain-power, as the effect to the cause.
Obj. 2. — The parliament (saith Williams)
" may not command the king ; why, then,
make they supplication to him, if their vote
be a law ?
Ans. — They supplicate, ex decentia, of
decency and conveniency for his place, as
a city supplicate a lord mayor ; but they
supplicate not ex debito, of obligation, as
beggars seek alms, then should they be
cyphers. When a subject oppressed sup-
plicateth his sovereign tor justice, the king
is obliged, by office, to give justice ; and
to hear the oppressed is not an act of grace
and mercy, as to give alms, though it should
proceed from mercy in the prince, (Psal.
lxxii. 13,) but an act of royal debt.
Obj. 3.— The P. Prelate (c. 9, pp. 103,
104) objecteth : The most you claim to
parliament is a co-ordinate power, which,
in law and reason, run in equal terms. In
law, par in parem non habet imperium ;
an equal cannot judge an equal, much less
may an inferior usurp to judge a supe-
rior. Our Lord knew, gratia visionis, the
woman taken in adultery to be guilty, but
he would not sentence her ; to teach us, not
improbably, not to be both judge and wit-
ness. The parliament are judges, accusers,
and witnesses against the king in their own
cause, against the imperial laws.
Ans. 1. — The parliament is co-ordinate
ordinarily with the king in the power of
making laws ; but the co-ordination on the
king's part is by derivation, on the parlia-
ment's part, originaliter ct fontaliter, as in
the fountain. 2. In ordinary there is co-
ordination ; but if the king turn tyrant,
the estates are to use their fountain-power.
And that of the law, par in parem, &c. is
no better from his pen, that stealeth all he
hath, than from Barclaius, Grotius, Arni-
sseus, Blackwood, &c. : it is cold and sour.
We hold the parliament that made the king
at Hebron to be above their own creature,
the king. Barclaius saith more accurately,
(1. 5, cont. Monarch, p. 129,) " It is absurd
that the people should both be subject to
the king, and command the king also. — Ans.
1. It is not absurd that a father natural, as
a private man, should be subject to his son ;
even that Jesse, and his elder brother, the
lord of all the rest, be subject to David their
king. Royalists say, Our late queen, being
supreme magistrate, might by law have put
to death her own husband, for adultery or
murder. 2. The parliament should not be
both accuser, judge, and witness in their
own cause. 1. It is the cause of religion,
of God, of protestants, and of the whole
people. 2. The oppressed accuse ; there is
no need of witnesses in raising arms against
the subjects. 3. The P. Prelate could not
object this, if against the imperial laws the
king were both party and judge in his own
cause ; and in these acts of arbitrary power,
which he hath done through bad counsel, in
wronging fundamental laws, raising arms
against his subjects, bringing in foreign
enemies into both his kingdoms, &c. Now
this is properly the cause of the king, as he
is a man, and his own cause, not the cause
of God ; and by no law of nature, reason,
or imperial statutes, can he be both judge
and party. 4. If the king be sole supreme
judge without any fellow sharers in power,
(1.) He is not obliged by law to follow coun-
sel or hold parliaments ; for counsel is not
116
LEX, REX ; OR,
command. (2.) It is impossible to limit him
even in the exercises of his power, which
yet Dr Feme saith cannot be said ; for if
any of his power be retrenched, God is rob-
bed, saith Maxwell. (3.) He may by law
play the tyrant gratis.
Feme objecteth, (sect. 7, p. 26,)— The
king is a fundamental with the estates ; now
foundations are not to be stirred or re-
moved.
Ans. — The king, as king, inspired with
law, is a fundamental, and his power is not
to be stirred ; but as a man wasting his
people, he is a destruction to the house and
community, and not a fundamental in that
notion.
Some object: The three estates, as men,
and looking to their own ends, not to law
and the public good, are not fundamentals,
and are to be judged by the king.
Ans. — By the people, and the conscience
of the people, they are to be judged.
Obj. — But the people also do judge as
corrupt men, and not as the people, and a
politic body providing for their own safety.
Ans. — I grant all; when God will bring
a vengeance on Jerusalem, prince and peo-
ple both are hardened to their own de-
struction. Now, God hath made all the
three. In every government where there
is democracy, there is some chosen ones re-
sembling an aristocracy, and some one for
order, presiding in democratical courts, re-
sembling a king. In aristocracy, as in Hol-
land, there is somewhat of democracy, — the
people have their commissioners, and one
duke or general, as the prince of Orange is
some umbrage of royalty ; and in monarchy
there are the three estates of parliament,
and these contain the three estates, and so
somewhat of the three fomis of government ;
and there is no one government just that
hath not some of all three. Power and ab-
solute monarchy is tyranny ; unmixed de-
mocracy is confusion ; untempered aristo-
cracy is factious dominion ; and a limited
monarchy hath from democracy respect to
public good, without confusion. From aristo-
cracy safety in multitude of counsels with-
out factious emulation, and so a bar laid on
tyranny by the joint powers of many; and
from sovereignty union of many children in
one father ; and all the three thus contem-
pered have their own sweet fruits through
God's blessing, and their own diseases by
accident, and through men's corruption ;
and neither reason nor Scripture shall war-
rant any one in its rigid purity without
mixture. And God having chosen the best
government to bring men fallen in sin to
happiness, must warrant in any one a mix-
ture of all three, as in mixed bodies the
four elements are reduced to a fit temper
resulting of all the four, where the acrimony
of all the four first qualities is broken, and
the good of all combined in one.
1. The king, as the king, is an unerring
and living law, and by grant of Barclay/
of old, was one of excellent parts, and noble
through virtue and goodness ; and the good-
ness of a father as a father, of a tutor as a
tutor, of a head as a head, of a husband as
a husband, do agree to the king as a king ;
so, as king, he is the law itself, commanding,
governing, saving. 2. His will as king, or
his royal will, is reason, conscience, law. 3.
This will is politicly present (when his person
is absent) in all parliaments, courts, and in-
ferior judicatures. 4. The king, as king, can-
not do wrong or violence to any. 5. Amongst
the Romans the name king and tyrant were
common to one thing. (1.) Because, de
facto, some of their kings were tyrants, in
respect of their dominion, rather than kings.
(2.) Because he who was a tyrant, de facto,
should have been, and was a king too, de
jure. 6. It is not lawful either to disobey
or resist a king as a king, no more than it
is lawful to disobey a good law. 7- What
violence, what injustice and excess of pas-
sion the king mixeth in with his acts of
government, are merely accidental to a king
as king ; for, because men by their own in-
nate goodness will not, yea, morally cannot
do that which is lawful and just one to an-
other, and do naturally, since the fall of
man, violence one to another ; therefore, if
there had not been sin, there should not
have been need of a king, more than there
should have been need of a tutor to defend
the child whose father is not dead, or of a
physician to cure sickness where there is
health ; for, remove sin, and there is neither
death nor sickness ; but because sin is en-
tered into the world, God devised, as a re-
medy of violence and injustice, a living,
rational, breathing law, called a king, a judge,
a father. Now the aberrations, violence,
and oppression of this thing which is the
living, rational, breathing law, is no medium,
no mean intended by God and nature to
remove violence. How shall violence re-
Barcl. ad versus Monarcho. lib. 1, p. 24.
THE LAW AND THE PRINCE.
117
move violence ? Therefore an unjust king,
;is unjust, is not that genuine ordinance of
God, appointed to remove injustice, but ac-
cidental to a king. So we may resist the
injustice of the king, and not resist the king.
8. If, then, any cast off the nature of a
king, and become habitually a tyrant, in so
far he is not from God, nor any ordinance
which God doth own. If the office of a
tyrant (to speak so) be contrary to a king's
offices, it is not from God, and so neither is
the power from God. 9. Yea, laws, (which
are no less from God than the king's are,)
when they begin to be hurtful, cessant ma-
terialiter, they leave off to be laws ; because
they oblige non secundum vim verborum,
sed in vim sensus, not according to the
force of words, but according to sense, — I.
non figura literarum F. de actione et ob-
ligatione, 1. ita stipulatus. But who (saith
the royalists) shall be judge betwixt the
king and the people, when the people allege
that the king is a tyrant.
Ans. — There is a court of necessity no
less than a court of justice ; and the funda-
mental laws must then speak, and it is with
the people, in this extremity, as if they had
no ruler.
Obj. 1. — But if the law be doubtful, as
all human, all civil, all municipal laws may
endure great dispute, — the peremptory per-
son exponing the law must be the supreme
judge. This cannot be the people, there-
fore it must be the king.
Ans. 1. — As the Scriptures in all funda-
mentals are clear, and expone themselves,
and actu jyrimo condemn heresies, so all
laws of men in their fundamentals, which
are the law of nature and of nations, are
clear ; and, 2. Tyranny is more visible and
intelligible than heresy, and is soon decerned.
If a king bring in upon his native subjects
twenty thousand Turks armed, and the king
lead them, it is evident they come not to
make a friendly visit to salute the kingdom,
and depart in peace. The people have a
natural throne of policy in their conscience
to give warning, and materially sentence
against the king as a tyrant, and so by
nature are to defend themselves. Where
tyranny is more ■ obscure, and the thread
small, that it escape the eye of men, the
king keepeth possession ; but I deny that
tyrannv can be obscure long.
Obj. 2.— Dr Feme (p. 3, sect. 5, p. 39).—
A king may not, or cannot easily alter the
frame of fundamental laws, he may make
some actual invasion in some transient and
unfixed acts ; and it is safer to bear these,
than to raise a civil war of the body against
the head.
Ans. 1. — If the king, as king, may alter
any one wholesome law, by that same reason
he may alter all. 2. You give short wings
to an arbitrary prince, if he cannot overfly
all laws to the subversion of the fundamen-
tals of a state, if you make him, as you do,
(1.) One who hath the sole legislative power,
who allenarly by himself maketh laws, and
his parliament and council are only to give
him advice, which by law he may as easily re-
ject as they can speak words to him, he may
in one transient act (and it is but one) cancel
all laws made against idolatry and popery,
and command, through bad counsel, in all his
dominions, the Pope to be acknowledged as
Christ's vicar, and all his doctrine to be
established as the catholic true religion. It
is but one transient act to seal a pardon to
the shedding of the blood of two hundred
thousand killed by papists. (2.) If you make
him a king, who may not be resisted in
any case, and though he subvert all funda-
mental laws, he is accountable to God only :
his people have no remedy, but prayers or
flight.
Obj. 3.— Feme (p. 3. sect. 5, p. 39).—
Limitations and mixtures in monarchies do
not imply a forcible restraining power in
subjects, for the preventing of the dissolution
of the state, but only a legal restraining
power ; and if such a restraining power be
in the subjects by reservation, then it must
be expressed in the constitution of the
government, and in the covenant betwixt
the monarch and his people. But such a
condition is unlawful, which will not have
the sovereign power secured, — is unprofitable
for king and people, — a seminary for sedi-
tions and jealousies.
Ans. 1. — I understand not a difference
betwixt forcible restraining and legal re-
straining : for he must mean by " legal,"
man's law, because he saith it is a law in the
covenant betwixt the monarch and his people.
Now, if this be not forcible and physical, it is
only moral in the conscience of the king, and
a cypher and a mere vanity; for God, not the
people, putteth a restraint of conscience on
the king, that he may not oppress his poor
subjects; but he shall sin against God — that
is a poor restraint : the goodness of the
king, a sinful man, inclined from the womb
to all sin, and so to tyranny, is no restraint.
118
LEX, REX ; OR,
2. There is no necessity that the reserve
be expressed in the covenant between king
and people, more than in contract of mar-
riage between a husband and a wife; beside
her jointure, you should set down this
clause in the contract, that if the husband
attempt to kill the wife, or the wife the
husband, in that case it shall be lawful to
either of them to part company. For Dr
Feme saith, " That personal defence is law-
ful in the people, if the king's assault be
sudden, without colour of law, or inevitable."
Yet the reserve of this power of defence is
not necessarily to be expressed in the con-
tract betwixt king and people. Exigencies
of the law of nature cannot be set down in
positive covenants, they are presupposed. 3.
He saith, " A reservation of power whereby
sovereignty is not secured, is unlawful."
Lend me this argument : the giving away of
a power of defence, and a making the king
absolute, is unlawful, because by it the people
is not secured ; but one man hath thereby
the sword of God put in his hand, whereby
ex officio he may, as king, cut the throats
of thousands, and be accountable to none
therefor, but to God only. Now, if the
non-securing of the king make a condition
unlawful, the non-securing of a kingdom and
church, yea, of the true religion, (which are
infinitely in worth above one single man,)
may far more make the condition unlaw-
ful. 4. A legal restraint on a king is no
more unprofitable, and a seminary of jea-
lousies between king and people, than a
legal restraint upon people ; for the king,
out of a non-restraint, as out of seed, may
more easily educe tyranny and subversion
of religion. If outlandish women tempt
even a Solomon to idolatry, as people may
educe sedition out of a legal restraint laid
upon a king, to say nothing that tyranny is
a more dangerous sin than sedition, by
how much more the lives of many, and true
religion, are to be preferred to the safety of
one, and a false peace.
Obj. 4. — An absolute monarch is free from
all forcible restraint, and so far as he is ab-
solute from all legal restraints of positive laws.
Now, in a limited monarch, there is only
sought a legal restraint ; and limitation can-
not infer a forcible restraint, for an absolute
monarch is limited also, not by civil compact,
but by the law of nature and nations, which he
cannot justly transgress. If therefore an abso-
i Dr Feme, p. 3, sort. 5, p. 40.
lute monarch, being exorbitant, may not be
resisted because he transgresseth the law of
nature, how shall we think a limited mo-
narch may be resisted for transgressing the
bounds set by civil agreement.
Ans. 1. — A legal restraint on the people
is a forcible restraint ; for if law be not
backed with force, it is only a law of reward-
ing well-doing, which is no restraint, but an
encouragement to do evil. If, then, there
be a legal restraint upon the king, without
any force, it is no restraint, but only such a
request as this : be a just prince, and we
will give your majesty two subsidies in one
year. 2. I utterly deny that God ever or-
dained such an irrational creature as an ab-
solute monarch. If a people unjustly, and
against nature's dictates, make away irre-
vocably their own liberty, and the liberty of
their posterity, which is not their's to dis-
pose off, and set over themselves as base
slaves, a sinning creature, with absolute
power, he is their king, but not as he is ab-
solute, and that he may not be forcibly
resisted, notwithstanding the subjects did
swear to his absolute power, (which oath in
the point of absoluteness is unlawful, and so
not obligatory,) I utterly deny. 3. An ab-
solute monarch (saith he) is limited, but by
law of nature. That is, Master Doctor, he is
not limited as a monarch, not as an absolute
monarch, but as a son of Adam ; he is under
the limits of the law of nature, which he
should have been under though he had never
been a king all his days, but a slave. But
what then ? Therefore, he cannot be re-
sisted. Yes, Doctor, by your own grant he
can be resisted : if he invade an innocent
subject (say you) suddenly, without colour
of law, or inevitably ; and that because he
transgresseth the law of nature. You say a
limited monarch can less be resisted for
transgressing the bounds set by civil agree-
ment. But what if the thus limited mo-
narch transgress the law of nature, and sub-
vert fundamental laws? He is then, you
seem to say, to be resisted. It is not for
simple transgression of a civil agreement
that he is to be resisted. The limited mo-
narch is as essentially the Lord's anointed,
and the power ordained of God, as the ab-
solute monarch. Now resistance by all
your grounds is unlawful, because of God's
power and place conferred upon him, not
because of men's positive covenant made
with him.
To find out the essential difference be-
THE LAW AND THE PRINCE.
119
twixt a king and a tyrant, we are to observe,
that it is one thing to sin against a man, an-
other thing against a state. David, killing-
Uriah , committed an act of murder. But
upon this supposition, that David is not
punished for that murder, he did not so sin
against the state, and catholic good of the
state, that he turneth tyrant and ceaseth to
be a lawful king. A tyrant is he who
habitually sinneth against the catholic good
of the subjects and state, and subverteth law.
Such a one should not be, as Jason, of whom
it is said byiEneas Silvius, Graviterferebat,
si non regnaret, quasi nesciret esse pri-
vatum. When such as are monstrous tyrants
are not taken away by the estates, God pur-
sueth them in wrath. Domitian was killed
by his own family, his wife knowing of it ;
Aurelianus was killed with a thunderbolt;
Darius was drowned in a river ; Dioclesian,
fearing death, poisoned himself; Salerius
died eaten with worms, — the end also of
Herod and Antiochus ; Maxentius was swal-
lowed up in a standing river; Julian died,
being stricken through with a dart thrown
at him by a man or an angel, it is not
known ; Valens, the Arian, was burnt with
fire in a litttle village by the Gothes ; Anas-
tasius, the Eutychian emperor, was stricken
by God with thunder ; Gundericus Vandalus,
when he rose against the church of God,
being apprehended by the devil, died. Some-
time the state have taken order with tyrants :
the empire was taken from Vitellius, Helio-
gabalus, Maximinus, Didius, Julianus ; so
was the two Childerici of France served ;
so were also Sigebertus, Dagabertus, and
Luodovic II. of France : Christiernus of
Denmark, Mary of Scotland, who killed her
husband and raised forces against the king-
dom ; so was Henricus Valesius of Poland,
for flying the kingdom ; Sigismundus of
Poland, for violating his faith to the states.
QUESTION XXV.
WHAT FORCE THE SUPREME LAW HATH OVER
THE KING, EVEN THAT LAW OF THE PEO-
PLE'S SAFETY, CALLED " SALUS POPULI."
The law of the twelve tables is, salus
populi, suprema lex. The safety of the
people is the supreme and cardinal law to
which all laws are to stoop. And that from
these reasons : —
1. Originally; Because if the people be
the first author, fountain and efficient under
God, of law and king, then their own safety
must be principally sought, and their safety
must be tar above the king, as the safety of a
cause, especially of an universal cause, such
as is the people, must be more than the safety
of one, as Aristotle saith, (1. 3. polit., alias
1. 5,) oil priri iriifuKt to /ii^os i-rt^i^liv rou tfavro;
— " The part cannot be more excellent
than the whole ;" nor the effect above the
cause.
2. Finaliter. This supreme law must
stand ; for if all law, policy, magistrates and
power be referred to the people's good as
the end, (Rom. xiii. 4,) and to their quiet
and peaceable life in godliness and honesty,
then must this law stand, as of more worth
than the king, as the end is of more worth
than the means leading to the end, for the
end is the measure and rule of the goodness
of the mean ; and, finis ultimus in infiuxu
est potentissimus, the king is good, because
he conduceth much for the safety of the
people ; therefore, the safety of the people
must be better.
3. By way of limitation : because no law
in its letter hath force where the safety of
the subject is in hazard ; and if law or king-
be destructive to the people they are to be
abolished. This is clear in a tyrant or a
wicked man.
4. In the desires of the most holy : Moses,
a prince, desired for the safety of God's
people, and rather than God should destroy
his people, that his name should be rased
out of the book of life ; and David saith,
(1 Chron. xxi. 17,) " Let thine hand, I pray
thee, O Lord my God, be on me, and on my
father's house ; but not on thy people, that
they should be plagued." This being a
holy desire of these two public spirits, the
object must be in itself true, and the safety
of God's people and their happiness must be
of more worth than the salvation of Moses
and the life of David and his father's house.
The Prelate (c. 16, p. 159) borroweth an
answer to this — for he hath none of his
own — from Dr Feme (sect. 7, p. 28) : The
safety of the subjects is the prime end of
the constitution of government ; but it is
not the sole and adequate end of govern-
ment in monarchy ; for that is the safety
of both king and people. And it beseem-
eth the king to proportion his laws for their
good ; and it becometh the people to pro-
portion all their obedience, actions, and en-
120
LEX, REX ; OR,
deavours for the safety, honour, and happi-
ness of the king. It is impossible the peo-
ple can have safety when sovereignty is
weakened.
Ans. — The Prelate would have the other
half of the end, why a king is set over a peo-
ple, to be the safety and happiness of the
king, as well as the safety of the people.
This is new logic indeed, that one and the
same thing should be the mean and the
end. The question is, For what end is a
king made so happy as to be exalted king ?
The Prelate answereth, He is made happy
that he may be happy, and made a king
that he may he made a king. Now, is the
king, as king, to intend this half end ? that
is, whether or no accepteth he the burden
of setting his head and shoulders under the
crown, for this end, that he may not only
make the people happy, but also that he may
make himself rich and honourable above his
brethren, and enrich himself? I believe not ;
but that he feed the people of God ; for if
he intend himself, and his own honour, it is
the intention of the man who is king, and
intentio operantis, but it is not the intention
of the king, as the king, or intentio operis.
The king, as a king, is formally and essen-
tially the " minister of God for our good,"
(Rom. xiii. 4 ; 1 Tim. ii. 2,) and cannot
come under any notion as a king, but as a
mean, not as an end, nor as that which he is,
to seek himself. I conceive God did forbid
this in the moulding of the first king. (Deut.
xvii. 18, 19, 26.) He is a minister by office,
and one who receiveth honour and wages
for this work, that, ex officio, he may feed his
people. But the Prelate saith, the people
are to intend his riches and honour. I can-
not say but the people may intend to honour
the king ; but the question is not, whether
the people be to refer the king and his
government as a mean to honour the king ?
I conceive not. But that end which the
people, in obeying the king, in being ruled
by him, may intend, is, (1 Tim. ii. 2,)
" That under him they may lead a quiet
and peaceable life, in all godliness and
honesty." And God's end in giving a king
is the good and safety of his people.
P. Prelate (c. 16, p. 160).— To reason
from the one part and end of monarchical
government — the safety of the subjects, to
the destruction and weakening of the other
part of the end — the power of sovereignty
and the royal prerogative, is a caption a
divisis. If the king be not happy, and in- I
vested with the full power of a head, the
body cannot be well. By anti-monarchists,
the people at the beginning were necessi-
tated to commit themselves, lives and for-
tunes, to the government of a king, because
of themselves they had not wisdom and
power enough to do it ; and therefore, they
enabled him with honour and power, with-
out which he could not do this, being as-
sured that he could not choose, but most
earnestly and carefully endeavour this end,
to wit, his own and the people's happiness ;
therefore, the safety of the people issueth
from the safety of the king, as the life of
the natural body from the soul. Weak go-
vernment is near to anarchy. Puritans will
not say, Quovis modo esse, etiam poenale,
is better than non esse : the Scripture saith
the contrary ; it were better for some never
to have been born than to be. Tyranny is
better than no government.
Ans. 1. — He knows not sophisms of logic
who calleth this argument a divisis ; for the
king's honour is not the end of the king's
government. He should seek the safety of
state and church, not himself; himself is a
private end, and a step to tyranny.
2. The Prelate lieth when he maketh us
to reason from the safety of the subject to
the destruction of the king. Feme, Bar-
clay, Grotius, taught the hungry scholar
to reason so. Where read he this ? The
people must be saved, that is the supreme
law, therefore, destroy the king. The
devil and the Prelate both shall not fasten
this on us. But thus we reason : when the
man who is the king endeavoureth not the
end of his royal place, but, through bad
counsel, the subversion of laws, religion, and
bondage of the kingdom, the free estates
are to join with him for that end of safety,
according as God hath made them heads of
tribes and princes of the people ; and if
the king refuse to join with them, and will
not do his duty, I see not how they are in
conscience liberated before God from doing
their part.
3. If the P. Prelate call resisting the
king by lawful defensive wars, the destruc-
tion of the head, he speaketh with the mouth
of one excommunicated and delivered up to
Satan.
4. We endeavour nothing more than the
safety and happiness of the king, as king ;
but his happiness is not to suffer him to
destroy his subjects, subvert religion, arm
papists who have slaughtered above two
THE I..UV AM) THE 1'Kl
121
hundred thousand innocent protestants, only
for the profession of that true religion which
the king hath sworn to maintain. Not to
rise in arms to help the king against these
were to gratify him as a man, but to be
accessory to his soul's destruction as a king.
5. That the royal prerogative is the end
of a monarchy ordained by God, neither
Scripture, law, nor reason can admit.
6. The people are to intend the safety of
other judges as well as the king's. If par-
liaments be destroyed, whose it is to make
laws and kings, the people can neither be
safe, free to serve Christ, nor happy.
7. It is a lie that people were necessitated
at the beginning to commit themselves to a
king ; for we read of no king while Nimrod
arose : fathers of families (who were not
kings), and others, did govern till then.
8. It was not want of wisdom, (for in
many, and in the people, there must be
more wisdom than in one man,) but rather
corruption of nature and reciprocation of
injuries that created kings and other judges.
9. The king shall better compass his
end, to wit, the safety of the people, with
limited power, {pAaccnt mediocria,) and with
other judges added to help him, (Num. xi.
14, 16; Deut. i. 12 — 15,) than to put in
one man's hand absolute power ; for a sinful
man's head cannot bear so much new wine,
such as exorbitant power is.
10. He is a base flatterer who saith,
The king cannot choose, but earnestly and
carefully endeavour his own and the people's
happiness ; that is, the king is an angel, and
cannot sin and decline from the duties of a
king. Of the many kings of Judah and
Israel, how many chose this? All the
good kings that have been may be written
I in a gold ring.
11. The people's safety dependeth indeed
on the king, as a king and a happy gover-
nor ; but the people shall never be fattened
to eat the wind of an imaginary prerogative
royal.
12. Weak government, that is, a king
with a limited power, who hath more power
about his head than within his head, is a
strong king, and far from anarchy.
13. I know not what he meaneth, but
his master Arminius's way and words are
here, for Arminians say,1 " That being in
the damned, eternally tormented, is no bene-
i Jac. Armini. Declar. Remonstrant, in suod.
dordrac.
fit ; it were better they never had being
than to be eternally tormented ;" and this
they say to the defiance of the doctrine of
eternal reprobation, in which we teach, that
though by accident, and because of the
danmed's abuse of being and life, it were to
them better not to be, as is said of Judas,
yet shnpliciter comparing being with non-
being, and considering the eternity of mise-
rable being in relation to the absolute liber-
ty of the Former of all things, who maketh
use of the sinful being of clay-vessels for the
illustration of the glory of his justice and
power, (Rom. ix. 17, 22 ; 1 Pet. ii. 8 ;
Jude v. 4,) it is a censuring of God and
his unsearchable wisdom, and a condemning
of the Almighty of cruelty, (God avert blas-
phemy of the unspotted and holy Majesty,)
who, by Arminian grounds, keepeth the
damned in life and being, to be fuel eter-
nally for Tophet, to declare the glory of his
justice. But the Prelate behoved to go out
of his way to salute and gratify a proclaimed
enemy of free grace, Arminius, and hence
he would infer that the king, wanting his
prerogative royal and fulness of absolute
power to do wickedly, is in a penal and mi-
serable condition, and that it were better
for the king to be a tyrant, with absolute
liberty to destroy and save alive at his plea-
sure, as is said of a tyrant, (Dan. v. 19,)
than to be no king at all. And here con-
sider a principle of royalists' court faith : —
1. The king is no king, but a lame and mi-
serable judge, if he have not irresistible
power to waste and destroy. 2. The king
cannot be happy, nor the people safe, nor
can the king do good in saving the needy,
except he have the uncontrollable and unli-
mited power of a tyrant to crush the poor
and needy, and lay waste the mountain of
the Lord's inheritance. Such court-ravens
who feed upon the souls of living kings, are
more cruel than ravens and vultures, who
are but dead carcases.
Williams, bishop of Ossory, answereth to
the maxim, Salus popidi, &c. " No wise
king but will carefully provide for the peo-
ple's safety, because his safety and honour is
included in theirs, his destruction in theirs."
And it is, saith Lipsius, egri animi propri-
um nihil diu pati. Absalom was persuaded
there was no justice in the land when he
intendeth rebellion ; and the poor Prelate,
following him, spendeth pages to prove that
goods, life, chastity, and fame, dependeth
on the safety of the king, as the breath of
s
122
LEX, REX : OR,
our nostrils, our nurse-father, our head, cor-
ner-stone, and judge (c. 17, 6, 18, 1). The
reason why all disorder was in church and
state was not because there was no judge,
no government ; none can be so stupid as to
imagine that. But because, 1. They wanted
the most excellent of governments. 2. Be-
cause aristocracy was weakened so as there
was no right. No doubt priests there were,
but (Hos. iv.) either they would not serve,
or were over-awed. No doubt in those days
they had judges, but priests and judges
were stoned by a rascally multitude, and
they were not able to rule ; therefore it is
most consonant to Scripture to say, Salus
regis suprema populi salus, the safety of
the king and his prerogative royal is the
safest sanctuary for the people. So Hos.
iii. 4 ; Lament, ii. 9.
Ans. 1. — The question is not of the wis-
dom, but of the power of the king, if it
should be bounded by no law.
2. The flatterer may know, there be
more foolish kings in the world than wise,
and that kings misled with idolatrous queens,
and by name Ahab ruined himself, and his
posterity and kingdom.
3. The salvation and happiness of men
standing in the exalting of Christ's throne
and the gospel, therefore every king and
every man will exalt the throne ; and so let
them have an uncontrollable power, without
constraint of law, to do what they list, and
let no bounds be set to kings over subjects.
By this argument their own wisdom is a
law to lead them to heaven.
4. It is not Absalom's mad malcontents
in Britain, but there were really no justice
to protestants, — all indulgence to papists,
popery, Arminianism, — idolatry printed,
preached, professed, rewarded by authority,
parliaments and church assemblies ; the
bulwarks of justice and religion were de-
nied, dissolved, crushed, &c.
5. That by a king he understandeth a
monarch, (Judg. xvii.) and that such a one
as Saul, of absolute power, and not a judge,
cannot be proved, for there were no kings
in Israel in the judges' days, — the govern-
ment not being changed till near the end of
Samuel's government.
6. And that they had no judges, he
saith, it is not imaginable. But I rather be-
lieve God than the Prelate. Every one did
what was right in his own eyes, because
there was none to put ill-doers to shame.
Possibly the estates of Israel governed some
way for mere necessity, but wanting a su-
preme judge, which they should have, they
were loose ; but this was not because where
there is no king, as P. P. would insinuate,
there was no government, as is clear.
7. Of tempered and limited monarchy I
think as honourably as the Prelate, but that
absolute and unlimited monarchy is more ex-
cellent than aristocracy, I shall then believe
when royalists shall prove such a govern-
ment, in so far as it is absolute, to be of God.
8. That aristocracy was now weakened I
believe not, seeing God so highly commend-
eth it, and calleth it his own reigning over
his people. (1 Sam. viii. 7.) The weaken-
ing of it through abuse is not to a purpose,
more than the abuse of monarchy.
9. No doubt, saith he, (Hos. iv.) they
were priests and judges, but they were
over-awed, as they are now. I think he
would say, (Hos. iii. 4,) otherwise he cit-
eth Scripture sleeping, that the priests of
Antichrist be not only over-awed, but out of
the earth. I yield that the king be limited,
not over-awed, I think God's law and man's
law alloweth.
10. The safety of the king, as king, is not
only safety, but a blessing to church and
state, and therefore this P. Prelate and his
fellows deserve to be hanged before the
sun, who have led him on a war to destroy
him and his protestant subjects. But the
safety and flourishing of a king, in the ex-
ercises of an arbitrary unlimited power
against law and religion, and to the de-
struction of his subjects, is not the safety of
the people, nor the safety of the king's soul,
which these men, if they be the priests of
the Lord, should care for.
The Prelate cometh to refute the learned
and worthy Observator. The safety of the
people is the supreme law, therefore the
king is bound in duty to promote all and
every one of his subjects to all happiness.
The Observator hath no such inference, the
king is bound to promote some of his sub-
jects, even as king, to a gallows, especially
Irish rebels, and many bloody mahgnants.
But the Prelate will needs have God rigo-
rous (hallowed be his name) if it be so; for it
is impossible to the tenderest-hearted father
to do so. Actual promotion of all is impossi-
ble. That the king intend it of all his sub-
jects, as good subjects, by a throne estab-
lished on righteousness and judgment is that
which the worthy Observator meaneth. Other
things here are answered.
THE LAW AXD THE PRINCE.
123
The sum of his second answer is a repe-
tition of what he hath said. I give my word,
in a pamphlet of one hundred and ninety-
four pages, I never saw more idle repeti-
tions of one thing twenty times hefore said ;
but (p. 168) he saith, " The safety of the
king and his subjects, in the moral notion,
may be esteemed morally the same, no less
than the soul and the body make one per-
sonal subsistence."
Ans. — This is strange logic. The king
and his subjects are ens per aggregationcm,
and the king, as king, hath one moral subsis-
tence, and the people another. Hath the
lather and the son, the master and the ser-
vant, one moral subsistence ? But the man
speaketh of their well-being, and then he
must mean that our king's government — that
was not long ago, and is yet, to wit, the
popery, Arminianism, idolatry, cutting off
men's ears and noses, banishing, imprison-
ment for speaking against popery, arming
of papists to slay protestants, pardoning the
blood of Ireland, that I fear, shall not be
soon taken away, &c, — is identically the
same with the life, safety, and happiness of
protestants. Then life and death, justice
and injustice, idolatry and sincere worship,
are identically one, as the soul of the Pre
late'and his body are one.
The third is but a repetition. The acts
of royalty (saith the Observator) are acts of
duty and obligation, therefore, not acts of
grace properly so called ; therefore we may
not thank the king for a courtesy. This is
no consequence. What fathers do to chil-
dren are acts of natural duty and of na-
tural grace, and yet children owe gratitude
to parents, and subjects to good kings, in a
legal sense. No, but in way of courtesy
only. The observator said, the king is not
a father to the whole collective body, and it
is well said he is son to them, and they his
maker. Who made the king ? Policy an-
swereth, The state made him, and divinity,
God made him.
The Observator said well, the people's
weakness is not the king's strength. The
Prelate saith, Amen. He said, That that
perisheth not to the king, which is granted
to the people. The Prelate (p. 170) de-
nieth, because, what the king hath in trust
from God, the king cannot make away to an-
other, nor can any take it from him with-
out sacrdege.
Ans. — True indeed, if the king had roy-
alty by immediate trust and infusion by God,
as Elias had the spirit of prophecy, that he
cannot make away. Royalists dream that
God, immediately from heaven, now in-
fuseth faculty and right to crowns with-
out any word of God. It is enough to make
an enthusiast leap up to the throne and kill
kings. Judge if these fanatics be favourers
of kings. But if the king have royalty me-
diately, by the people's free consent, from
God, there is no reason but people give as
much power, even by ounce weights, (for
power is strong wine and a great mocker,)
as they know a weak man's head will bear,
and no more. Power is not an immediate
inheritance from heaven, but a birthright
of the people borrowed from them ; they
may let it out for their good, and resume it
when a man is drunk with it. The man
will have it conscience on the king to fight
and destroy his three kingdoms for a dream,
his prerogative above law. But the truth is,
prelates do engage the king, his house, hon-
our, subjects, church, for their cursed mitres.
The Prelate (p. 172) vexeth the reader
with repetitions, and saith, The king must
proportion his government to the safety of
the people on the one hand, and to his own
safety and power on the other hand.
Ans. — What the kujg doth as king, he
doeth it for the happiness of his people.
The king is a relative ; yea, even his own
happiness that he seeketh, he is to refer to
the good of God's people. He saith far-
ther, The safety of the people includeth the
safety of the king, because the word popu-
lus is so taken ; which he proveth by a raw,
sickly rabble of words, stolen out of Pas-
serat's dictionary. His father, the school-
master, may whip him for frivolous etymo-
logies.
This supreme law, saith the Prelate, (p.
175,) is not above the law of prerogative
royal, the highest law, nor is rex above lex.
The democracy of Rome had a supremacy
above laws, to make and unmake laws ; and
will they force this power on a monarch, to
the destruction of sovereignty ?
Ans. — This, which is stolen from Spalato,
Barclay, Grotius, and others, is easily an-
swered. The supremacy of people is a law
of nature's self-preservation, above all posi-
tive laws, and above the king, and is to re-
gulate sovereignty, not to destroy it. If
this supremacy of majesty was in people be-
fore they have a king, then, 1. They lose
it not by a voluntary choice of a kino- ; for
a kin a is chosen for good, and not for the
124
people's loss, therefore, they must retain
this power, in habit and potency, even when
they have a king. 2. Then supremacy of
majesty is not a beam of divinity proper to
a king only. 3. Then the people, having
royal sovereignty virtually in them, make,
and so unmake a king, — all which the Pre-
late denieth.
This supreme law (saith the Prelate, p.
176, begging it from Spalato, Amisseus,
Grotius) advances the king, not the people ;
and the sense is, the kingdom is really some
time in such a case that the sovereign must
exercise an arbitrary power, and not stand
upon private men's interests, or transgres-
sing of laws made for the private good of
individuals, but for the preservation of itself,
and the public, may break through all laws.
This he may, in the case when sudden
foreign invasion threateneth ruin inevitably
to king and kingdom : a physician may
rather cut a gangrened member than suffer
the whole body to perish. The dictator, in
case of extreme dangers, (as Livy and Dion.
Halicarnast show us,) had power according
to his own arbitrament, had a sovereign
commission in peace and war, of life, death,
persons, &c, not co-ordinate, not subordi-
nate to any.
Ans. 1. — It is not an arbitrary power,
but naturally tied and fettered to this same
supreme law, salus populi, the safety of
the people, that a king break through not
the law, but the letter of the law, for the
safety of the people ; as the chirurgeon, not
by any prerogative that he hath above the
art of chirurgery, but by necessity, cut-
teth off a gangrened member. Thus it is
not arbitrary to the king to save his people
from ruin, but by the strong and imperious
law of the people's safety he doth it ; for if,
he did it not, he were a murderer of his peo-
ple. 2. He is to stand upon transgression
of laws according to their genuine sense of
the people's safety ; for good laws are not
contrary one to another, though, when he
breaketh through the letter of the law, yet
he breaketh not the law ; for if twenty
thousand rebels invade Scotland, he is to
command all to rise, though the formality
of a parliament cannot be had to indict the
war, as our law provideth ; but the king
doth not command all to rise and defend
themselves by prerogative royal, proper to
him as king, and incommunicable to any
but to himself.
1. There is no such din and noise to be
made for a king and his incommunicable
prerogative ; for though the king were not
at all, yea, though he command the con-
trary, (as he did when he came against
Scotland with an English army,) the law
of nature teacheth all to rise, without the
king.
2. That the king command this, as king,
is not a particular positive law ; but he doth
it as a man and a member of the kingdom.
The law of nature (which knoweth no dream
of such a prerogative) forceth him to it, as
every member is, by nature's indictment, to
care for the whole.
3. It is poor hungry skill in this new
statist, (for so he nameth all Scotland,) to say
that any laws are made for private interests,
and the good of some individuals. Laws
are not laws if they be not made for the
safety of the people.
4. It is false that the king, in a public
danger, is to care for himself as a man, with
the ruin and loss of any ; yea, hi a public
calamity, a good king, as David, is to desire
he may die that the public may be saved,
2 Sam. xxiv. 17 ; Exod. xxxii. 32. It is
commended of all, that the emperor Otho,
yea, and Richard II. of England, as M.
Speed saith, (Hist, of England, p. 757,)
resigned their kingdoms to eschew the effu-
sion of blood. The Prelate adviseth the
king to pass over all laws of nature, and
slay thousands of innocents, and destroy
church and state of three kingdoms, for a
straw, and supposed prerogative royal.
1. Now, certainly, prerogative and abso-
luteness to do good and ill, must be inferior
to a law, the end whereof is the safety of the
people. For David willeth the pestilence
may take him away, and so his preroga-
tive, that the people may be saved (2. Sam.
xxiv. 17) ; for prerogative is cumulative to
do good, not privative to do ill ; and so is
but a mean to defend both the law and the
people.
2. Prerogative is either a power to do
good or ill, or both. If the first be said, it
must be limited by the end and law for
which it is ordained. A mean is no farther
a mean, but in so far as it conduceth to the
end, the safety of all. If the second be ad-
mitted, it is licence and tyranny, not power
from God. If the third be said, both rea-
sons plead against this, that prerogative
should be the king's end in the present
wars.
3. Prerogative being a power given by
THE LAW AND THE PRINCE.
125
the mediation of the people; yea, suppose
(which is false) that it were given imme-
diately of God, yet it is not a thing for which
the king should raise war against his sub-
jects ; for God will ask no more of the king
than he giveth to him. The Loi'd reapeth
not where he soweth not. If the militia,
and other things, be ordered hitherto for the
holding off Irish and Spanish invasion by
sea, and so for the good of the land, seeing
the king in his own person cannot make use
of the militia, he is to rejoice that his sub-
jects are defended. The king cannot an-
swer to God for the justice of war on his
part. It is not a case of conscience that the
king should shed blood for, to wit, because
the under-officers are such men, and not
others of his choosing, seeing the kingdom
is defended sufficiently except where cava-
liers destroy it. And to me this is an un-
answerable argument, that the cavaliers de-
stroy not the kingdoms for this prerogative
royal, as the principal ground, but for a
deeper design, even for that which was
working by prelates and malignants before
the late troubles in both kinodoms.
4. The king is to intend the safety of his
people, and the safety of the king as a go-
vernor ; but not as this king, and this man
Charles, — that is a selfish end. A king Da-
vid is not to look to that ; for when the peo-
ple was seeking his life and crown, he saith,
(Psal. iii. 8,) " Thy blessing upon thy peo-
ple." He may care for, and intend that
the king and government be safe ; for if the
kingdom be destroyed, there cannot be a
new kingdom and church on earth again to
serve God in that generation, (Psal. lxxxix.
47,) but they may easily have a new king
again ; and so the safety of the one cannot
in reason be intended as a collateral end
with the safety of the other ; for there is no
imaginable comparison betwixt one man,
with all his accidents of prerogative and ab-
soluteness, and three national churches and
kindgoms. Better the king weep for a
childish trifle of a prerogative than that
popery be erected, and three kingdoms be
destroyed by cavaliers for their own ends.
5. The dictator's power is, 1. A fact,
and proveth not a point of conscience. 2.
His power was in an exigence of extreme
danger of the commonwealth. The P. Pre-
late pleadeth for a constant absoluteness
above laws to the king at all times, and
that jure clivino. 3. The dictator was the
people's creature ; therefore the creator,
the people, had that sovereignty over him.
4. The dictator was not above a king ; but
the Romans ejected kings. 5. The dicta-
tor's power was not to destroy a state : he
might be, and was resisted ; he might be
deposed.
P. Prelate (p. 177).— The safety of the
people is pretended as a law, that the Jews
must put Christ to death, and that Saul
spared Agag.
Ans. 1. — No shadow for either in the
word of God. Caiaphas prophecied, and
knew not what he said ; but that the Jews
intended the salvation of the elect, in killing
Christ, or that Saul intended a public good
in sparing Agag, shall be the Prelate's di-
vinity, not mine. 2. What, howbeit many
should abuse this law of the people's safety,
to wrong good kings, it ceaseth not there-
fore to be a law, and licenceth not ill kings
to place a tyrannical prerogative above a
just dictate of nature.
In the last chapter (c. 16) the Prelate
hath no reasons, only he would have kings
holy, and this he proveth from Apocrypha
books, because he is ebb in Holy Scripture ;
but it is Romish holiness, as is clear, — 1. He
must preach something to himself, that the
king adore a tree-altar. Thus kings must
be most reverend in their gestures (p. 182).
2. The king must hazard his sacred life and
three kingdoms, his crown, royal posterity,
to preserve sacred things, that is, anti-
christian Romish idols, images, altars, cere-
monies, idolatry, popery. 4. He must,
upon the same pain, maintain sacred per-
sons, that is, greasy apostate prelates. The
rest, I am weary to trouble the reader with-
all, but know ex ungue leonem.
QUESTION XXVI.
WHETHER THE KING BE ABOVE THE LAW
OR NO.
We may consider the question of the
law's supremacy over the king, either in the
supremacy of constitution of the kino-, or of
direction, or of limitation, or of co-action
and punishing. Those who maintain this,
" The king is not subject to the law," if their
meaning be, " The king as king is not subject
to the law's direction," they say nothino- ; for
the king, as the king, is a living law ; then
they say, " The law is not subject to the
126
LEX, REX ; OR,
law's direction :" a very improper speech ; or,
the king, as king, is not subject to the co-
action of the law : that is true ; for he who
is a living law, as such, cannot punish him-
self, as the law saith.
Assert. 1. — The law hath a supremacy
of constitution above the king : —
1. Because the king by nature is not king,
as is proved ; therefore, he must be king by
a politic constitution and law; and so the
law, in that consideration, is above the king,
because it is from a civil law that there is a
king rather than any other kind of gover-
nor. 2. It is by law, that amongst many
hundred men, this man is king, not that
man ; and because, by the which a thing is
constituted, by the same thing it is, or may
be dissolved ; therefore, 3. As a commu-
nity, finding such and such qualifications as
the law requireth to be in a king, in this
man, not in that man, — therefore upon law-
ground they make him a king, and, upon
law-grounds and just demerit, they may
unmake him again ; for what men volun-
tary do upon condition, the condition being
removed, they may undo again.
Assert. 2. — It is denied by none but the
king is under the directive power of the law,
though many liberate the king from the co-
active power of a civil law. But I see not
what direction a civil law can give to the
king if he be above all obedience, or disobe-
dience, to a law, seeing all law-direction is in
ordine ad obedientiam, in order to obey, ex-
cept thus far, that the light that is in the
civil law is a moral or natural guide to con-
duct a king in his walking ; but this is the
morality of the law which enlighteneth and
informeth, not any obligation that aweth the
king ; and so the king is under God's and
nature's law. This is nothing to the purpose.
Assert. 3. — The king is under the law, in
regard of some coercive limitation ; because,
1. There is no absolute power given to him
to do what he listeth, as a man. And be-
cause, 2. God, in making Saul a king, doth
not by any royal stamp give him a power to
sin, or to play the tyrant ; for which cause I
expone these of the law, omnia sunt possi-
bilia regi, impcrator omnia potest. Baldus
in sect. F. de no. for. fidel. in F. et in
prima constitut. C. col. 2. Chassanatus in
catalog, glorias mundi. par. 5. considerat.
24. et tanta est ejus celsitudo, ut non posset
ei imponi lex in regno suo. Curt, in consol.
65. col. 6. ad. F. Petrus Rebuff. Notab. 3.
repeL I. unices* C. de scntcnt. quce pro eo
quod n. 17, p. 363. All these go no otherwise
but thus, The king can do all things which
by a law he can do, and that holdeth him, id
possumus quod jure possumus ; and, there-
fore, the king cannot be above the covenant
and law made betwixt him and his people
at his coronation-oath ; for then the covenant
and oath should bind him only by a natural
obligation, as he is a man, not by a civil or
politic obligation, as he is a king. So then,
1. It were sufficient that the king should
swear that oath in his cabinet-chamber, and
it is but a mocking of an oath that he swear
it to the people. 2. That oath given by the
representative-kingdom should also oblige the
subjects naturally, inforo Dei, not politically,
inforo humano, upon the same reason. 3.
He may be resisted as a man.
Assert. 4. — The fourth case is, if the king
be under the obliging politic co-action of civil
laws, for that he, in foro Dei, be under the
morality of civil laws, so as he cannot contra-
vene any law in that notion but he must sin
against God, is granted on all hands. (Deut.
xvii. 20 ; Josh. i. 8 ; 1 Sam. xii. 15.) That
the king bind himself to the same law that
he doth bind others, is decent, and obligeth
the king as he is a man ; because, 1 . (Matt,
vii. 12,) It is said to be the law and the
prophets, " All things whatsoever ye would
men should do unto you, do ye even so to
them." 2. It is the law, impcrator I. 4.
digna vox. C. de lege et tit. Quod quisque
juris in alium statuit, eodem et ipse utatur.
Julius Caesar commanded the youth who had
deflowered the emperor's daughter to be
scourged above that which the law allowed.
The youth said to the emperor, Dixisti legem
Cwsar, — " You appointed the law, Caesar."
The emperor was so offended with himself
that he had failed against the law, that for
the whole day he refused to taste meat.1
Assert. 5. — The king cannot but be sub-
ject to the co-active power of fundamental
laws. Because, 1. This is a fundamental law
that the free estates lay upon the king, that all
the power that they give to the king, as king,
is for the good and safety of the people;
and so what he doth to the hurt of his sub-
jects, he doth it not as king. 2. The law
saith, Qui habet potestatem constituendi
etiam et jus adimendi, I. nemo. 37. I. 21.
de reg. jure. Those who have power to
make have power to unmake kings. 3.
Whatever the king doth as king, that he
i Plutarch in Apothpg. lib. 4.
THE LAW AND THE PRINCE.
127
doth by a power borrowed from (or by a
fiduciary power which is his by trust) the
estates, who made him king. He must then
be nothing but an eminent servant of the
state, in the punishing of others. If, therefore,
he be unpunishable, it is not so much because
his royal power is above all law co-action,
as because one and the same man cannot be
both the punisher and the punished; and
this is a physical incongruity rather than a
moral absurdity. So the law of God layeth
a duty on the inferior magistrate to use the
sword against the murderer, and that by
virtue of his office ; but I much doubt, if for
that he is to use the sword against himself
in the case of murder, for this is a truth I
purpose to make good, That suffering, as
suffering, according to the substance and
essence of passion, is not commanded by any
law of God or nature to the sufferer, but
only the manner of suffering. I doubt if it
be not, by the law of nature, lawful even to
the ill-doer, who hath deserved death by
God's law, to fly from the sword of the law-
ful magistrate ; only the manner of suffering
with patience is commanded of God. I
know the law saith here, That the magistrate
is both judge and the executor of the sentence
aoainst himself, in his own cause, for the ex-
cellency of his office.1 Therefore these are
to be distinguished, whether the king, rati-
one demeriti et jure, by law be punishable,
or if the king can actually be punished cor-
porally by a law of man, he remaining king ;
and since he must be a punisher himself, and
that by virtue of his office. In matters of
goods, the king may be both judge and
punisher of himself, as our law provideth
that any subject may plead his own heritage
from the king before the inferior judges, and
if the king be a violent possessor, and in
mala fide for many years, by law he is
obliged, upon a decree of the lords, to exe-
cute the sentence against himself, ex, officio,
and to restore the lands, and repay the
damage to the just owner ; and this the king-
is to do against himself, ex officio. I grant
here the king, as king, punisheth himself as
an unjust man, but because bodily suffering-
is mere violence to nature, I doubt if the
king, ex officio, is to do or inflict any bodily
punishment on himself. Nemo potest a
scipso cogi. I. ille a quo, sect. 13.
1 Magistrates ipse est judex et executor contra
scipsum, in propria causa, propter excellentiam sui
officii, 1. si pater familias, et 1. et hoc. Tiberius
Caesar, F. de Hered. hoc. jnst.
Assert. G.— There be some laws made in
favour of the king, as king, as to pay tribute.
The king must be above this law as king.
True, but if a nobleman of a great rent be
elected king, I know not if he can be free
from paying to himself, as king, tribute, see-
ing this is not allowed to the king by a divine
law, (Rom. xiii. 6,) as a reward of his work;
and Christ expressly maketh tribute a thing-
due to Caesar as a king. (Matt. xxii. 21.)
There be some solemnities of the law from
which the king may be free ; Prickman
(D. c. 3, n. 78) relateth what they are ;
they are not laws, but some circumstances
belonging to laws, and he answereth to many
places alleged out of the lawyers, to prove
the king to be above the law. Maiderus (in
12. Art. 4, 5, 9, 96,) will have the prince
under that law, which concerneth all the
commonwealth equally in regard of the mat-
ter, and that by the law of nature ; but he
will not have him subject to these laws which
concerneth the subjects as subjects, as to pay
tribute. He citeth Francisc. a Vict. Covar-
ruvias, and Turrecremata. He also will have
the prince under positive laws, such as not to
transport victuals ; not because the law bind-
eth him as a law, but because the making of
the law bindeth him, tanquam conditio sine
qua non, even " as he who teacheth another
that he should not steal, he should not steal
himself." (Rom. ii.) But the truth is, this
is but a branch of the law of nature, that I
should not commit adultery, and theft, and
sacrilege, and such sins as nature condem-
neth, if I shall condemn them in others, and
doth not prove that the king is under the
co-active power of civil laws. Ulpianus (1.
31. F. de regibus) saith, " The prince is
loosed from laws." Bodine (de Repub. 1. 7,
c. 8). — " Nemo imperat sibi," no man com-
mandeth himself. Tholosanus saith, (de
Rep. 1. 7, c. 20,) " Ipsius est dare, non ac-
cipere leges," the prince giveth laws, but re-
ceiveth none. Donellus (Lib. 1, Comment.
c. 17) distinguisheth betwixt a law and a
royal law proper to the king. Trentlerus
(vol. i. 79, 80) saith, " The prince is freed
from laws ;" and that he obeyeth laws, de
honestate, non de necessitate, upon honesty,
not of necessity. Thomas P. (1. q. 96, art.
6,) and with him Soto Gregonus de Valen-
tia, and other schoolmen, subject the king to
the directive power of the law, and liberate
him of the co-active power of the law.
Assert. 7- — If a king turn a parricide,
a Hon, and a waster and destroyer of the
128
LEX, REX ; OR,
people, as a man he is subject to the co-active
power of the laws of the land. If any law
should hinder that a tyrant should not be
punished by law, it must be because he hath
not a superior but God, for royalists build all
upon this ; but this ground is false : —
Arg. 1. — Because the estates of the king-
dom, who gave him the crown, are above
him, and they may take away what they
gave him ; as the law of nature and God
saith, If they had known he would turn
tyrant, they would never have given him the
sword ; and so, how much ignorance is in
the contract they made with the king, as
little of will is in it ; and so it is not every
way willing, but, being conditional, is sup-
posed to be against their will. They gave
the power to him only for their good, and
that they may make the king, is clear. (2
Chron. xxiii. 11 ; 1 Sam. x. 17, 24; Deut.
xvii. 14 — 17 ; 2 Kings xi. 12 ; 1 Kings xvi.
21 ; 2 Kings x. 5 ; Judg. ix. 6.) Four-
score valiant men of the priests withstood
Uzziah with corporal violence, and thrust
him out, and cut him off from the house of
the Lord. (2 Chron. xxvi. 18.)
Arg. 2. — If the prince's place do not put
him above the laws of church discipline,
(Matt, xviii., for Christ excepteth none,
and how can men except?) and if the rod of
Christ's " lips smite the earth, and slay the
wicked," (Isa. xi. 4,) and the prophets Elias,
Nathan, Jeremiah, Isaiah, &c, and John
Baptist, Jesus Christ, and his Apostles, have
used this rod of censure and rebuke, as ser-
vants under God, against kings, this is a sort
of spiritual co-action of laws put in execution
by men; and by due proportion corporal co-
action being the same ordinance of God,
though of another nature, must have the
like power over all, whom the law of God
hath not excepted ; but God's law excepteth
none at all.
Arg. 3. — It is presumed that God hath
not provided better for the safety of the part
than of the whole, especially when he maketh
the part a mean for the safety of the whole.
But if God have provided that the king, who
is a part of the commonwealth, shall be free
of all punishment, though he be a habitual
destroyer of the whole kingdom, seeing God
hath given him to be a father, tutor, saviour,
defender thereof, and destined him as a mean
for their safety, then must God have worse,
not better, provided for the safety of the
whole than of the part. The proposition is
clear, in that God (Rom. xiii. 4; 1 Tim. ii.
2) hath ordained the ruler, and given to him
the sword to defend the whole kingdom and
city ; but we read nowhere that the Lord
hath given the sword to the whole kingdom,
to defend one man, a king, though a ruler,
going on in a tyrannical way of destroying
all his subjects. The assumption is evident :
for then the king, turning tyrant, might set
an army of Turks, Jews, or cruel Papists to
destroy the church of God, without all fear
of law or punishment. Yea, this is con-
trary to the doctrine of royalists : for Win-
zetus (adversus Buchananum, p. 275) saith
of Nero, that he, seeking to destroy the
senate and people of Rome, and seeking to
make new laws for himself, excidit jure
regni, lost right to the kingdom. And Bar-
claius (Monarch. 1. 3, c. ult. p. 213, ) saith,
a tyrant, such as Caligula, spoliare se jure
regni, spoileth himself of the right to the
crown. And in that same place, rcgem, si
regnum suum alienee ditioni manciparit,
regno cadere, if the king sell his kingdom,
he loseth the title to the crown. Grotius,
(de jure belli et pads, I. i. c. 4, n. 7,) Si
rex hostili anirno in totius populi exitium
feratur, amittit regnum, if he turn enemy
to the kingdom, for their destruction, he
loseth his kingdom, because (saith he) volun-
tas imperandi, et voluntas perdendi, simul
consistere non p>ossunt, a will or mind to go-
vern and to destroy cannot consist together
in one. Now, if this be true, that a king,
turning tyrant, loseth title to the crown,
this is either a falling from his royal title
only in God's court, or it is a losing of it
before men, and in the court of his subjects.
If the former be said, 1. He is no king,
having before God lost his royal title ; and
yet the people is to obey him as "the minis-
ter of God," and a power from God, when
as he is no such thing. 2. In vain do these
authors provide remedies to save the people
from a tyrannous waster of the people, if
they speak of a tyrant who is no king in
God's court only, and yet remaineth a ling
to the people in regard of the law : for the
places speak of remedies that God hath pro-
vided against tyrants cum titulo, such as are
lawful kings, but turn tyrants. Now by
this they provide no remedy at all, if only
in God's court, and not in man's court also,
a tyrant lose his title. As for tyrants sine
titulo, such as usurp the throne, and have
no just claim to it, Barclaius (adver.
Monarch, I. iv. c. 10. p. 268) saith, " Any
private man may kill him as a public enemy
THE LAW AND THE PRINCE.
129
of the state :" but if he lose his title to the
crown in the court of men, then is there a
court on earth to judge the king, and so he
is under the co-active power of a law ; —
then a king may be resisted, and yet those
who resist him do not incur damnation ; the
contrary whereof royalists endeavour to prove
from Rom. xiii. ; — then the people may un-
king one who was a king. But I would
know who taketh that »i7« t) from him,
whereby he is a king, that beam of divine
majesty? Not the people ; because royalists
say, they neither can give nor take away royal
dignity, and so they cannot unking him.
Arg. 4. — The more will be in the con-
sent, (saith Ferd. Vasquez, 1. i. c. 41,) the
obligation is the stricter. So doubled words
(saith the law, 1. 1, sect. 13, n. 13) oblige more
strictly. And all laws of kings, who are
rational fathers, and so lead us by laws, as
by rational means to peace and external hap-
piness, are contracts of king and people.
Omnis lex sponsio et contractus licip. sect.
1, Inst, de ver. relig. Now the king, at his
coronation-covenant with the people, giveth
a most intense consent, an oath, to be a
keeper and preserver of all good laws : and
so hardly he can be freed from the strictest
obligation that law can impose. And if he
keep laws by office, he is a mean to preserve
laws; and no mean can be superior and
above the end, but inferior thereunto.
Arg. 5. — Bodine proveth, (de Rep. I. 2,
c. 5, p. 221, ) that emperors at first were
but princes of the commonwealth, and that
sovereignty remained still in the senate and
people. Marius Salomonius, a learned Ro-
man civilian, wrote six books de principatu,
to refute the supremacy of emperors above
the state. Ferd. Vasq. (Must, quest, part.
1. I. 1, n. 21) proveth, that the prince, by
royal dignity, leaveth not off to be a citizen,
a member of the politic body, and not a
king, but a keeper of laws.
Arg. 6. — Hence, the prince remaineth,
even being a prince, a social creature, a man
as well as a king ; one who must buy, sell,
promise, contract, dispose : therefore, he is
not regula regulans, but under rule of law ;
for it is impossible, if the king can, in a poli-
tical way, live as a member of a society, and
do and perform acts of policy, and so per-
form them, as he may, by his office, buy and
not pay ; promise, and vow, and swear to
men, and. not perforin, nor be obliged to
men to render a reckoning of his oath, and
kill and destroy, — and yet in curia politico?
societatis, in the court of human policy, be
free : and that he may give inheritances, as
just rewards of virtue and well-doing, and
take them away again. Yea, seeing these
sins that are not punishable before men, are
not sins before men, if all the sins and op-
pressions of a prince be so above the punish-
ment that men can inflict, they are not sins
before men ; by which means the king is
loosed from all guiltiness of the sins against
the second table : for the ratio formalis,
the formal reason, why the judge, by war-
rant from God, condemneth, in the court of
men, the guilty man, is, that he hath sinned
against human society through the scan-
dal of blasphemy, or that through some other
heinous sin he hath defiled the land. Now
this is incident to the king as well as to
some other sinful man.
To these, and the like, hear what the ex-
communicated Prelate hath to say, (c. 15, p.
146, 147,) " They say (he meaneth the
Jesuits) every society of men is a perfect re-
public, and so must have within itself a
power to preserve itself from ruin, and by
that to punish a tyrant." He answereth,
" A society without a head, is a disorderly
rout, not a politic body ; and so cannot have
this power.
Ans. 1. — The Pope giveth to every so-
ciety politic power to make away a tyrant,
or heretical king, and to unking him, by his
brethren, the Jesuits', way. And observe
how papists (of which number I could easily
prove the P. Prelate to be, by the popish
doctrine that he delivered, while the iniquity
of time, and dominion of prelates in Scot-
land, advanced him, against all worth of
true learning and holiness, to be a preacher
in Edinburgh) and Jesuits agree, as the
builders of Babylon. It is the purpose of
God to destroy Babylon.
2. This answer shall infer, that the aris-
tocratical governors of any free state, and
that the Duke of Venice, and the senate
there, is above all law, and cannot be resisted,
because without their heads they are a dis-
orderly rout.
3. A political society, as by nature's in-
stinct they may appoint a head, or heads, to
themselves, so also if their head, or heads,
become ravenous wolves, the God of nature
hath not left a perfect society remediless ;
but they may both resist, and punish the
head, or heads, to whom they gave all the
power that they have, for their good, not for
their destruction.
130
LEX, REX. ; OR,
4. They are as orderly a body politic, to
unmake a tyrannous commander, as they
were to make a just governor. The Prelate
saitk, " It is alike to conceive a politic body
without a governor, as to conceive the natu-
ral body without a head." He meaneth,
none of them can be conceivable. I am not
of his mind. When Saul was dead, Israel
was a perfect politic body ; and the Prelate,
if he be not very obtuse in his head, (as this
hungry piece, stolen from others, showeth him
to be,) may conceive a visible political so-
ciety performing a political action, (2 Sam.
v. 1 — 3,) making David king at a visible
and conceivable place, at Hebron, and mak-
ing a covenant with him. And that they
wanted not all governors, is nothing to make
them chimeras inconceivable. For when so
many families, before Nimrod, were go-
verned only by fathers of families, and they
agreed to make either a king, or other go-
vernors, a head, or heads, over themselves,
though the several families had government,
yet these associated families had no govern-
ment ; and yet so conceivable a politic body,
as if Maxwell would have appeared amongst
them, and called them a disorderly rout, or
an unconceivable chimera, they should have
made the Prelate know that chimeras can
knock down prelates. Neither is a king the
life of a politic body, as the soul is of the
natural body. The body createth not the
soul; but Israel created Saul king, and
when he was dead, they made David king,
and so, under God, many kings, as they
succeeded, till the Messiah came. No na-
tural body can make souls to itself by suc-
cession ; nor can sees create new prelates
always.
P. Prelate. — Jesuits and puritans differ
infinitely : we are hopeful God shall cast
down this Babel. The Jesuits, for ought I
know, seat the superintendent power in the
community. Some sectaries follow them,
and warrant any individual person to make
away a king in case of defects, and the work
is to be rewarded as when one killeth a
ravenous wolf. Some will have it in a col-
lective body ; but how ? Not met together
by warrant, or writ of sovereign authority,
but when fancy of reforming church and
state calleth them. Some will have the
power in the nobles and peers ; some in the
three estates assembled by the king's writ ;
some in the inferior judges. I know not
where this power to curb sovereignty is, but
in Almighty God.
Ans. 1. Jesuits and puritans differ in-
finitely ; true. Jesuits deny the Pope to
be antichrist, hold all Arminian doctrine,
Christ's local descension to hell, — all which
the Prelate did preach. We deny all this.
2. We hope also the Lord shall destroy
the Jesuits' Babel ; the suburbs whereof, and
more, are the popish prelates in Scotland
and England.
3. The Jesuits, for ought he knoweth,
place all superintendent power in the com-
munity. The Prelate knoweth not all his
brethren, the Jesuits', ways ; but it is igno-
rance, not want of good-will. For Bellarmine,
Beucanus, Suarez, Gregor. de Valentia, and
others, his dear fellows, say, that all super-
intendent power of policy, in ordine ad
spiritualia is in the man, whose foot Max-
well would kiss for a cardinal's hat.
4. If these be all the differences, it is
not much. The community is the remote
and last subject, the representative body the
nearest subject, the nobles a partial subject ;
the judges, as judges sent by the king, are
so in the game, that when an arbitrary
prince at his pleasure setteth them up, and
at command that they judge for men, and
not for the Lord, and accordingly obey, they
are by this power to be punished, and others
put in their place.
5. A true cause of convening parliaments
the Prelate maketh a fancy at this time : it
is as if the thieves and robbers should say a
justice-court were a fancy ; but if the Prelate
might compear before the parliament of
Scotland, (to which he is an outlaw like his
father, 2 Thess. ii. 4,) such a fancy, I con-
ceive, should hang him, and that deservedly.
P. Prelate (p. 147, 148).— The subject
of this superintending power must be se-
cured from error in judgment and practice,
and the community and states then should
be infallible.
Ans. — The consequence is nought. No
more than the king, the absolute indepen-
dent, is infallible. It is sure the people are
in less hazard of tyranny and self-destruc-
tion than the king is to subvert laws and
make himself absolute ; and for that cause
there must be a superintendent power above
the king, and God Almighty also must be
above all.
P. Prelate. — The parliament may err,
then God hath left the state remediless,
except the king remedy it.
Ans. — There is no consequence here, ex-
cept the king be impeccable. Posterior
THE LAW AND THE PRINCE.
131
parliaments may correct the former. A
state is not remediless, because God's reme-
dies, in sinful men's hands, may miscarry.
But the question is now, Whether God hath
given power to one man to destroy men, sub-
vert laws and religion, without any power
above him to coerce, restrain, or punish ?
P. Prelate (c. 15, p. 148).— If, when
the parliament erreth, the remedy is left to
the wisdom of God, why not when the king
erreth ?
Ans. — Neither is antecedent true, nor
the consequence valid, for the sounder part
may resist ; and it is easier to one to destroy
many, having a power absolute, which God
never gave him, than for many to destroy
themselves. Then, if the king Uzziah in-
trude himself and sacrifice, the priests do
sin in remedying thereof.
P. Prelate. — Why might not the peo-
ple of Israel, peers or sanhedrim, have con-
vened before them, judged and punished
David for his adultery and murder ? Ro-
manists and new statists acknowledge no
case lawful, but heresy, apostacy, or ty-
ranny ; and tyranny, they say, must be
universal, manifest as the sun, and with
obstinacy, and invincible by prayers, as is
recorded of Nero, whose wish was rather
a transported passion, than a fixed reso-
lution. This cannot fall in the attempts
of any but a madman. Now this cannot be
proved our king; but though we grant in
the foresaid case, that the community may
resume their power, and rectify what is
amiss, which we cannot grant ; but this will
follow by then- doctrine, in every case of
male administration.1
Ans. — The Prelate draweth me to speak
of the case of the king's unjust murder,
confessed (Psal. h.) ; to which I answer :
He taketh it for confessed, that it had been
treason in the sanhedrim or states of Israel
to have taken on them to judge and punish
David for his adultery and his murder ; but
he giveth no reason for tins, nor any word
of God ; and truly, though I will not pre-
sume to go before others in this, God's law
(Gen. ix. 6, compared with Num. xxxv. 30,
31) seemeth to say against them.
6. Nor can I think that God's law, or his
deputy the judges, are to accept the persons
of the great, because they are great ; (Deut.
i. 17 ; 2 Chron. xix. 6, 7 ;) and we say, we
1 Stolen from Arnisaeus, de authorit. prin. c. 4,
n. 5, p. 73.
cannot distinguish where the law distinguish-
eth not. The Lord speaketh to under judges,
(Lev. xix. 15,) " Ihou shalt not respect
the person of the poor, nor honour the person
of the mighty," or of the prince, for we know
what these names Sl"0 an(^ JO") mean-
eth. I grant it is not God's meaning that
the king should draw the sword against him-
self, but yet it followeth not, that if we speak
of the demerit of blood, that the law of God
accepteth any judge, great or small ; and if
the estates be above the king, as I conceive
they are, though it be a human politic con-
stitution, that the king be free of all co-action
of law, because it conduceth for the peace of
the commonwealth ; yet if we make a matter
of conscience, for my part I see no exception
that God maketh it ; if men make, I crave
leave to say, a facto ad jus non sequitur ;
and I easily yield that in every case the
estates may coerce the king, if we make it
a case of conscience. And for the place,
(Ps. li. 4,) " Against thee, thee only, have
I sinned," »nNtDm"QS *]S flatterers
allege it to be a place proving that the king-
is above all earthly tribunals, and all laws,
and that there was not on earth any who
might punish king David ; and so they cite
Clemens Alexandrin. (Strom. 1. 4,) Arnobi.,
Psal. 1., Dydimus, Hieronim. ; but Calvin on
the place, giveth the meaning that most of
the fathers give, — Domine, etiam si me totus
mundus absolvat, mihi tamen plusquam
satis est, quod te solum judicem sentio. It
is true, Beda, Euthymius, Ambrosius, (Apol.
David, c. 4 and c. 10,) do all acknowledge
from the place, de facto, there was none
above David to judge him, and so doth Au-
gustine, Basilius Theodoret, say, and Chry-
sostomus, and Cyrillus, and Hieronimus,
(Epist. 22.) Ambrose (Sermon 16, in Psal.
cxviii.) Gregorius, and Augustine (Joan 8,)
saith, he meaneth no man durst judge or
punish him, but God only. Lorinus, the Je-
suit, observeth eleven interpretations of the
fathers all to this sense : " Since (Lyra saith)
he sinned only against God, because God only
could pardon him ;" Hugo Cardinalis, " Be-
cause God only could wash him," which he
asketh in the text. And Lorinus, " Solo Deo
conscio peccavir But the simple meaning
is, 1. Against thee only have I sinned, as my
eye-witness and immediate beholder; and,
therefore, he addeth — and have done this evil
in thy sight. 2. Against thee only, as my
judge, that thou mayest be justified when thou
judgest, as clear from all unrighteousness,
132
LEX, REX ; OK,
when thou shalt send the sword on my house.
3. Against thee, O Lord only, who canst
wash me, and pardon me (ver. 1, 2). And if
this " thee only" exclude altogether Uriah,
Bathsheba, and the law of the judges, as it'
he had sinned against none of these in their
kind, then is the king, because a king, free,
not only from a punishing law of man, but
from the duties of the second table simply,
and so a king cannot be under the best and
largest half of the law, Thou shalt love thy
neighbour as thyself. He shall not need
to say, Forgive us our sins, as we forgive
them that sin against us; for there is no
reason, from the nature of sin, and the nature
of the law of God, why we can say more the
subjects and sons sin against the king and
father, than to say the father and king sin
against the sons and subjects. By this,
the king killing his father Jesse, should sin
against God, but not break the fifth com-
mand, nor sin against his father. God
should in vain forbid fathers to provoke their
children to wrath.
1. And kings to do injustice to their sub-
jects, because by this the superior cannot
sin against the inferior, forasmuch as kings
can sin against none but those who have
power to judge and punish them ; but God
only, and no inferiors, and no subjects, have
power to punish the kings ; therefore kings
can sin against none of their subjects ; and
where there is no sin, how can there be a
law ? Neither major or minor can be denied
by royalists.
2. We acknowledge tyranny must only
unking a prince. The Prelate denieth it,
but he is a green statist. Barclay, Grotius,
Winzetus, as I have proved, granteth it.
3. He will excuse Nero, as of infirmity,
wishing all Borne to have one neck, that he
may cut it off. And is that charitable of
kinors, that they will not be so mad as to
destroy their own kingdom ? But when his-
tories teach us there have been more tyrants
than kings, the kings are more obliged to
him for flattery than for state-wit, except
we say that all kings who eat the people of
Cod, as they do bi-ead, owe him little for
making them all mad and frantic.
4. But let them be Neroes, and mad, and
worse, there is no coercing of them, but all
must give their necks to the sword, if the
poor Prelate be heard ; and yet kings cannot
be so mad as to destroy their subjects. Mai-y
of England was that mad. The Romish
princes who have given (Bev. xvii. 13)
their power and strength to the beast, and
do make war with the Lamb ; and kings in-
spired with the spirit of the beast, and drunk
with the wine of the cup of Babel's fornica-
tions, are so mad ; and the ten emperors are
so mad, who wasted their faithfulest subjects.
P. Prelate. — If there be such a power in
the peers, resumable in the exigent of neces-
sity, as the last necessary remedy for safety
of church and state, God and nature not
being deficient in things necessary, it must
be proved out of the Scripture, and not taken
on trust, for affirmanti incumbit probatio.
Arts. — Mr Bishop, what better is your
affirmanti incumbit, &c, than mine? for
you are the affirmer. 1. I can prove a
power in the king, limited only to feed, go-
vern, and save the people ; and you affirm
that God hath given to the king, not only a
power official and royal to save, but also to
destroy and cut off, so as no man may say,
Why doest thou this? Shall we take this
upon the word of an excommunicated pre-
late ? Profer tabulas, John P. P., I believe
you not, royal power is, Deut. xvii. 18; Rom.
iii. 14. I am sure there is there a power
given to the king to do good, and that from
God. Let John P. P. prove a power to do
ill, given of God to the king. 2. We shall
quickly prove that the states may repress
this power, and punish the tyrant — not the
king, when he shall prove that a tyrannous
power is an ordinance of God, and so may
not be resisted ; for the law of nature teach-
eth, — if I give my sword to my fellow to de-
fend me from the murderer, if he shall
fall to and murder me with my own sword,
I may (if I have strength) take my sword
from him.
P. Prelate. — 1. It is infidelity to think
that God cannot help us, and impatience
that we will not wait on God. When a king
oppresseth us, it is against God's wisdom
that he hath not provided another mean for
our safety than intrusion on God's right. 2.
It is against God's power, — 3. His holiness,
— 4. Christian religion, that we necessitate
God to so weak a mean as to make use of
sin, and we cast the aspersion of treason on
religion, and deter kings to profess reformed
catholic religion ; — 5. We are not to jostle
God out of his right.
Ans. 1. — I see nothing but what Dr
Feme, Grotius, Barclay, Blackwood, have
said before, with some colour of proving the
consequence. The P. Prelate giveth us other
men's arguments, but without bones. All
THE LAW AND THE PRINCE.
133
were good, if the state's coercing and curbing
a power which God never gave to the king
were a sin and an act of impatience and un-
belief; and if it were proper to God only,
by his immediate hand, to coerce tyranny.
2. He calleth it not protestant religion,
either here or elsewhere, but cunningly
giveth a name that will agree to the Roman
catholic religion. For the Dominicans,
Franciscans, and the Parisian doctors and
schoolmen, following Occham, Gerson, Al-
main, and other papists, call themselves re-
formed catholics. He layeth this for a
ground, in three or four pages, — where these
same arguments are again and again repeated
in terminus, as his second reason, (p. 149,)
was handled ad nauseam (p. 148) ; his third
reason is repeated in his sixth reason, (p. 151 .)
He layeth down, I say, this ground, which
is the begged conclusion, and maketh the
conclusion the assumption, in eight raw and
often-repeated arguments, — to wit, That the
parliament's coercing and restraining of ar-
bitrary power is rebellion, and resisting the
ordinance of God. But he dare not look the
place, Rom. xiii., on the face. Other royalists
have done it with bad success. This I desire
to be weighed, and I retort the Prelate's
argument. But it is indeed the trivial ar-
gument of all royalists, especially of Barclay,
— obvious in his third book. If arbitrary and
tyrannical power, above any law that the
lawful magistrate commandeth under the
pain of death, — Thou shalt not murder one
man, Thou shalt not take away the vineyard
of one Naboth violently — be lawful and war-
rantable by God's word, then an arbitrary
power, above all divine laws, is given to the
keeping of the civil magistrate. And it is
no less lawful arbitrary, or rather tyrannical
power, for David to kill all his subjects, and
to plunder all Jerusalem, (as I believe pre-
lates and malignants and papists would serve
the three kingdoms, if the king should com-
mand them,) than to kill one Uriah, or for
Ahab to spoil one Naboth. The essence of
sin must agree alike to all, though the degrees
vary.
Of God's remedy against arbitrary power
hereafter, in the question of resistance ; but
the confused engine of the Prelate bringeth
it in here, where there is no place for it.
7. His seventh argument is :— Before
God would authorise rebellion, and give a
bad precedent thereof for ever, he would
rather work extraordinary and wonderful
miracles ; and therefore would not authorise
the people to deliver themselves from under
Pharaoh, but made Moses a prince, to bring
them out of Egypt with a stretched-out
arm. Nor did the Lord deliver his people
by the wisdom of Moses, or strength of the
people, or any act that way of theirs, but
by his own immediate hand and power.
Ans. — I reduce the Prelate's confused
words to a few ; for I speak not of his popish
term of St. Steven, and others the like ;
because all that he hath said in a book of
149 pages might have been said in three
sheets of paper. But, I pray you, what is
this argument to the question in hand,
which is, whether the king be so above all
laws, as people and peers, in the case of
arbitrary power, may resume their power
and punish a tyrant? The P. Prelate draw-
eth in the question of resistance by the
hair. Israel's not rising in arms against
king Pharaoh proveth nothing against the
power of a free kingdom against a tyrant.
1. Moses, who wrought miracles destruc-
tive to Pharaoh, might pray for vengeance
against Pharaoh, God having revealed to
Moses that Pharaoh was a reprobate ; but
may ministers and nobles pray so against
king Charles? God forbid.
2. Pharaoh had not his crown from
Israel.
3. Pharaoh had not sworn to defend
Israel, nor became he their king upon con-
dition he should maintain and profess the
religion of the God of Israel ; therefore
Israel could not, as free estates, challenge
him in their supreme court of parliament
of breach of oath ; and upon no terms could
they unking Pharaoh : he held not his
crown of them.
4. Pharaoh was never circumcised, nor
within the covenant of the God of Israel
5. Israel had their lands by the mere
gift of the king. I hope the king of Bri-
tain standeth to Scotland and England in a
fourfold contrary relation.
All divines know that Pharaoh, his princes,
and the Egyptians, were his peers and peo-
ple, and that Israel were not his native
subjects, but a number of strangers, who,
by the laws of the king and princes, by the
means of Joseph, had gotten the land of
Goshen for their dwelling, and liberty to
serve the God of Abraham, to whom they
prayed in their bondage, (Exod. ii. 23, 24,)
and they were not to serve the gods of
Egypt, nor were they of the king's reli-
134
LEX, REX ; OR,
gion. And therefore, his argument is thus :
A number of poor exiled strangers under
king Pharaoh, who were not Pharaoh's
princes and peers, could not restrain the
tyranny of king Pharaoh ; therefore, the
three estates in a free kingdom may not re-
strain the arbitrary power of a king.
1. The Prelate must prove that God
gave a royal and kingly power to king
Pharaoh, due to him by virtue of his kingly
calling, (according as royalists explain 1
Sam. viii. 9, 11,) to kill all the male chil-
dren of Israel, to make slaves of themselves,
and compel them to work in brick and clay,
while their lives were a burden to them ;
and that if a Roman catholic, Mary of Eng-
land, should kill all the male children of
prqtestants, by the hands of papists, at the
queen's commandment, and make bond-
slaves of all the peers, judges, and three
estates, who made her a free princess ; yet,
notwithstanding that Mary had sworn to
maintain the protestant religion, they were
to suffer and not to defend themselves. But
if God give Pharaoh a power to kill all
Israel, so as they could not control it, then
God giveth to a king a royal power by office
to sin, only the royalist saveth God from being
the author of sin in this, that God gave the
power to sin ; but yet with this limitation,
that the subjects should not resist this power.
2. He must prove that Israel was to give
their male children to Pharaoh's butchers, —
for to hide them was to resist a royal power ;
and to disobey a royal power given of God,
is to disobey God. 3. The subjects may not
resist the king's butchers coming to kill
them and their male children ; for to resist
the servant of the king in that wherein he is
a servant, is to resist the king. (1 Sam. viii.
7 ; 1 Pet. ii. 14 ; Rom. xiii. 1.) 4. He
must prove, that upon the supposition that
Israel had been as strong as Pharaoh and
his people ; that without God's special com-
mandment, (they then wanting the written
word,) they should have fought with Pha-
raoh ; and that we now, for all wars, must
have a word from heaven, as if we had not
God's perfect will in his word, as at that
time Israel behoved to have in all wars,
Judg. xviii. 5 ; 1 Sam. xiv. 37 ; Isa. xxx.
2; Jer. xxxviii. 37; 1 Kings xxii. 5; 1
Sam. xxx. 5 ; Judg. xx. 27 ; 1 Sam. xxiii.
2 ; 2 Sam. xvi. 23 ; 1 Chron. x. 14. But
because God gave not them an answer to
fight against Pharaoh, therefore we have no
warrant now to fight against a foreign nation |
invading us; the consequence is null, and
therefore this is a vain argument. The pro-
phets never reprove the people for not per-
forming the duty of defensive wars against
tyrannous kings ; therefore, there is no such
duty enjoined by any law of God to us.
For the prophets never rebuke the people
for non-performing the duty of offensive
wars against their enemies, but where God
gave a special command and response from
his own oracle, that they should fight. And
if God was pleased never to command the
people to rise against a tyrannous king, they
did not sin where they had no command-
ment of God ; but I hope we have now a
more sure word of prophecy to inform us.
5. The Prelate conjectureth Moses' mira-
cles, and the deliverance of the people by
dividing the Red Sea, was to forbid and
condemn defensive wars of people against
their king ; but he hath neither Scripture
nor reasons to do it. The end of these
miracles was to seal to Pharaoh the truth
of God's calling of Moses and Aaron to
deliver the people, as is cleai', Exod. iv.
1 — 4, compared with vii. 8—10. And that
the Lord might get to himself a name on
all the earth, Rom. ix. 17 ; Exod. ix. 16 ;
xiii. 13, 14. But of the Prelate's conjec-
tural end, the Scripture is silent, and we
cannot take an excommunicated man's word.
What I said of Pharaoh, who had not his
crown from Israel, that I say of Nebuchad-
nezzar and the kings of Persia, keeping the
people of God captive.
P. Prelate (p. 153).— So in the book
of Judges, when the people were delivered
over to the hand of their enemies, because
of their sins, he never warranted the ordi-
nary judges or community to be their own
deliverers ; but when they repented, God
raised up a judge. The people had no hand
in their own deliverance out of Babylon ;
God effected it by Cyrus, immediately and
totally. Is not this a real proof God will
not have inferior judges to rectify what is
amiss; but we must wait in patience till
God provide lawful means, some sovereign
power immediately sent by himself, in which
course of his ordinary providence, he will
not be deficient.
Ans. 1. — All this is beside the question,
and proveth nothing less than that peers
and community may not resume their power
to curb an arbitrary power. For, hi the
first case, their is neither arbitrary nor law-
ful supreme judge. 2. If the first prove any
THE LAW AND THE PRINCE.
135
thing, it proveth that it was rebellion in the
inferior judges and community of Israel to
fight against foreign kings, not set over them
by God ; and that offensive wars against
any kings whatsoever, because they are
kings, though strangers, are unlawful. Let
Socinians and anabaptists consider if the P.
Prelate help not them in this, and may
prove all wars to be unlawful. 3. He is so
malignant to all inferior judges, as if they
were not powers sant of God, and to all
governors that are not kings, and so up-
holders of prelates, and of himself as he
conceiveth, that by his arguing he will have
all deliverance of kings only, the only lawful
means in ordinary providence ; and so aris-
tocracy and democracy, except in God's ex-
traordinary providence, and by some divine
dispensation, must be extraordinary and or-
dinarily unlawful. 1. The acts of a state,
when a king is dead and they choose an-
other, shall be an anticipating of God's pro-
vidence. 2. If the king be a child, a cap-
tive, or distracted, and the kingdom op-
pressed with malignants, they are to wait,
while God immediately from heaven create a
king to them, as he did Saul long ago. But
have we now kings immediately sent as Saul
was? How is the spirit of prophecy and
government infused in them, as in king
Saul? or are they by prophetical inspira-
tion, anointed as David was ? I conceive
their calling to the throne on God's part
differs as much from the calling of Saul and
David, in some respect, as the calling of
ordinary pastors, who must be gifted by in-
dustry and learning and called by the church,
and the calling of apostles. 3. God would
deliver his people from Babylon by moving
the heart of Cyras immediately, the people
having no hand in it, not so much as sup-
plicating Cyras ; therefore, the people and
peers who made the king cannot curb his
tyrannical power, if he make captives and
slaves of them, as the kings of Chaldea made
slaves of the people of Israel. What ! Be-
cause God useth another mean, therefore,
this mean is not lawful. It followeth in no
sort. If we must use no means but what
the captive people did under Cyrus, we may
not lawfully fly, nor supplicate, for the peo-
ple did neither.
P. Prelate. — You read of no covenant in
Scripture made without the king. (Exod.
xxxiv.) Moses king of Jeshurun : neither
tables nor parliament framed it. Joshua
another, (Josh, xxiv.) and Asa, (2 Chron.
xv. ; 2 Chron. xxxiv. ; Ezra x.) The
covenant of Jehoiada in the nonage of
Joash, was the high priest's act, as the
king's governor. There is a covenant writh
hell, made without the king, and a false
covenant. (Hos. x. 3, 4.)
Ans. — We argue this negatively. 1. This
is neither commanded, nor practised, nor
warranted by promise ; therefore, it is not
lawful. But this is not practised in Scrip-
ture ; therefore, it is not lawful. It follow-
eth it. Show me in Scripture the killing of
a goring ox who killed a man ; the not
making battlements on a house ; the putting
to death of a man lying with a beast ; the
killing of seducing prophets, who tempted
the people to go a whoring, and serve an-
other God than Jehovah : I mean, a god
made by the hand of the baker, such a one
as the excommunicated Prelate is known to
be, who hath preached this idolatry in three
kingdoms. (Deut. xiii.) This is written, and
all the former laws are divine precepts.
Shall the precept make them all unlawful,
because they are not practised by some in
Scripture ? By this ? I ask, Where read ye
that the people entered in a covenant with
God, not to worship the golden image, and
the king ; and those who pretended they are
the priests of Jehovah, the churchmen and
prelates, refused to enter in covenant with
God ? By this argument, the king and
prelates, in non-practising with us, want-
ing the precedent of a like practised in
Scripture, are in the fault. 2. This is no-
thing to prove the conclusion in question.
3. All these places prove it is the king's
duty, when the people under him, and their
fathers, have corrupted the worship of God,
to renew a covenant with God, and to cause
the people to do the like, as Moses, Asa,
and Jehoshaphat did. 4. If the king refuse
to do his duty, where is it written that the
people ought also to omit their duty, and to
love to have it so, because the rulers cor-
rupt their ways? (Jer. v. 31.) To renew a
covenant writh God is a point of service due
to God that the people are obliged unto,
whether the king command it or no. What
if the king command not his people to serve
God ; or, what if he forbid Daniel to pray
to God ? Shall the people in that case serve
the King of kings, only at the nod and royal
command of an earthly king? Clear this
from Scripture. 5. Ezra (ch. v.) had no
commandment in particular from Artax-
erxes, king of Persia, or from Darius, but a
136
LEX, REX ; OR,
general. (Ezravii. 23.) " Whatsoever is com-
manded by the God of heaven, let it be dili-
gently done for the house of the God of
heaven." But the tables in Scotland, and
the two parliaments of England and Scot-
land, who renewed the covenant, and entered
in covenant not against the king, (as the P.
P. saith,) but to restore religion to its ancient
purity, have this express law both from king
James and king Charles, in many acts of
parliament, that religion be kept pure. Now,
as Artaxerxes knew nothing of the covenant,
and was unwilling to subscribe it, and yet
gave to Ezra and the princes a warrant, in
general, to do all that the God of heaven
required to be done, for the religion and
house of the God of heaven, and so a gene-
ral warrant for a covenant, without the
king ; and yet Ezra and the people, in
swearing that covenant, faded in no duty
against their king, to whom, by the fifth
commandment, they were no less subject
than we are to our king : just so we are, and
so have not faded. But they say, the king
hath committed to no lieutenant and deputy
under him, to do what they please in reli-
gion, without his royal consent in particular,
and the direction of his clergy, seeing he is
of that same religion with his people ; where-
as Artaxerxes was of another religion than
were the Jews and their governor. — Ans.
Nor can our king take on himself to do what
he please th, and what the prelates (amongst
whom those who ruled all are known, before
the world and the sun, to be of another reli-
gion than we are) pleaseth, in particular.
But see what religion and worship the Lord
our God, and the law of the land (which is
the king's revealed will) alloweth to us, that
we may swear, though the king should not
swear it ; otherwise, we are to be of no re-
ligion but of the king's, and to swear no
covenant but the king's, which is to join
with papists against protestants. 6. The
strano-ers of Ephraim and Manasseh, and out
of Simeon fell out of Israel in abundance to
Asa, when they saw that the Lord his God
was with him, (2 Chron. xv. 9, 10,) and
sware that covenant without their own king's
consent, their own king being against it. If
a people swear a religious covenant, without
their king, who is averse thereunto, far more
may the nobles, peers, and estates of parlia-
ment do it without their king ; and here is
an example of a practice, which the P. Pre-
late requireth. 7- That Jehoiada was go-
vernor and viceroy during the nonage of
Joash, and that by this royal authority the
covenant was sworn, is a dream, to the end
he may make the Pope, and the archprelate,
now viceroys and kings, when the tin-one
varieth. The nobles were authors of the
making of that covenant, no less than Jeho-
iada was ; yea, and the people of the land,
when the king was but a child, went unto
the house of Baal, and brake down his
images, &c. Here is a reformation, made
without the king, by the people. 8. Grave
expositors say, that the covenant with death
and hell (Isa. xxviii.) was the king's cove-
nant with Egypt. 9. And the covenant
(Hos. x.) is by none exponed of a covenant
made without the king. I have heard said,
this Prelate, preaching on this text before
the king, exponed it so ; but he spake words
(as the text is) falsely. The P. Prelate, to
the end of the chapter, giveth instance of the
ill success of popular reformation, because the
people caused Aaron to make a golden calf,
and they revolted from Rehoboam to Jero-
boam, and made two golden calves, and they
conspired with Absalom against David. —
Ans. If the first example make good any
thing, neither the high priest, as was Aaron,
nor the P. Prelate, who claimeth to be de-
scended of Aaron's house, should have any
hand in reformation at all ; for Aaron erred
in that. And to argue from the people's
sins to deny their power, is no better than
to prove Ahab, Jeroboam, and many kings
in Israel and Judah, committed idolatry,
therefore they had no royal power at all.
In the rest of the chapter, for a whole page,
he singeth over again Iris matins in a circle,
and giveth us the same arguments we heard
before ; of which you have these three
notes : — 1. They are stolen, and not his
own. 2. Repeated again and again to fill
the field. 3. All hang on a false supposi-
tion, and a begging of the question. That
the people, without the king, have no power
at all.
QUESTION XXVII.
WHETHER OR NO THE KING BE THE SOLE,
SUPREME AND FINAL INTERPRETER OF THE
LAW.
This question conduceth not a little to the
clearing of the doubts concerning the king's
absolute power, and the supposed sole no-
THE LAW AND THE PRINCE.
r.r,
mothetic power in the king. And I think
it not unlike to the question, Whether the
Pope and llomish church have a sole and
peremptory power of exponing laws, and
the word of God ? We are to consider that
there is a twofold exposition of laws; 1.
One speculative in a school way, so exquisite
jurists have a power to expone laws. 2.
Practical, in so far as the sense of the law
falleth under our practice ; and this is two-
fold,— either private and common to all, or
judicial and proper to judges ; and of this
last is the question.
For this public, the law hath one funda-
mental rule, salus populi, like the king of
planets, the sun, which lendeth star-light to
all laws, and by which they are exponed :
whatever interpretation swerveth either from
fundamental laws of policy, or from the law
of nature, and the law of nations, and espe-
cially from the safety of the public, is to be
rejected as a perverting of the law ; and
therefore, conscientia humani generis, the
natural conscience of all men, to which the
oppressed people may appeal unto when the
king exponeth a law unjustly, at his own
pleasure, is the last rule on earth for expon-
ing of laws. Nor ought laws to be made so
obscure, as an ordinary wit cannot see their
connexion with fundamental truths of policy,
and the safety of the people ; and therefore
I see no inconvenience, to say, that the law
itself is norma et regula juduicandi, the
rule and directory to square the judge, and
that the judge is the public practical inter-
preter of the law.
Assert. 1. — The king is not the sole and
final interpreter of the law.
1. Because then inferior judges should
not be interpreters of the law ; but inferior
judges are no less essentially judges than
the king, (Deut. i. 17; 2 Chron. xix. 6;
1 Pet. ii. 14; Rom. xiii. 1, 2,) and so by
office must interpret the law, else they can-
not give sentence according to their con-
science and equity. Now, exponing of the
law judicially is an act of judging, and so a
personal and incommunicable act ; so as I
can no more judge and expone the law ac-
cording to another man's conscience, than I
can believe with another man's soul, under-
stand with another man's understanding, or
see with another man's eye. The king's
pleasure, therefore, cannot be the rule of
the inferior judge's conscience, for he giveth
an immediate account to God, the Judge of
all, of a just or an unjust sentence. Suppose
Caesar shall expone the law to Pilate, that
Christ deserveth to die the death, yet Pilate
is not in conscience to expone the law so.
If therefore inferior judges judge for the
king, they judge only by power borrowed
from the king, not by the pleasure, will, or
command of the king thus and thus expon-
ing the law, therefore the king cannot be the
sole interpreter of the law.
2. If the Lord say not to the king only,
but also to other inferior judges, " Be wise,
understand, and the cause that you know
not, search out," then the king is not the
only interpreter of the law. But the Lord
saith not to the king only, but to other judges
also, Be wise, understand, and the cause that
you know not, search out ; therefore the king
is not the sole law-giver. The major is
clear from Psal. ii. 10, " Be wise now there-
fore, O ye kings, be instructed, ye judges of
the earth." So are commands and rebukes
for unjust judgment given to others than to
kings. (Ps. lxxxii. 1 — 5; lviii. 1, 2; Isa. i.
17, 23, 25, 26 ; iii. 14 ; Job xxix. 12—15;
xxxi. 21, 22.)
3. The king is either the sole interpreter
of law, in respect he is to follow the law as
his rule, and so he is a ministerial interpre-
ter of the law, or he is an interpreter of the
law according to that super-dominion of ab-
solute powrer that he hath above the law. If
the former be holden, then it is clear that
the king is not the only interpreter, for all
judges, as they are judges, have a ministerial
power to expone the law by the law : but the
second is the sense of royalists.
Assert. 2. — Hence our second assertion is,
That the king's power of exponing the law
is a mere ministerial power, and he hath no
dominion of any absolute royal power to ex-
pone the law as he will, and to put such a
sense and meaning of the law as he pleaseth.
1. Because Saul maketh a law, (1 Sam.
xiv. 24,) " Cursed be the man that tasteth
any food till night, that the king may be
avenged on his enemies," the law, according
to the letter, was bloody ; but, according to
the intent of the lawgiver and substance of
the law, profitable, for the end was that the
enemies should be pursued with all speed.
But king Saul's exponing the law after a
tyrannical way, against the intent of the law,
which is the diamond and pearl of all laws —
the safety of the innocent people, was justly
resisted by the innocent people, who violently
hindered innocent Jonathan to be killed.
Whence it is clear, that the people and
u
138
LEX, REX ; OR,
princes put on the law its true sense and
meaning ; for Jonathan's tasting of a little
honey, though as it was against that sinful
and precipitate circumstance, a rash oath,
yet it was not against the substance and true
intent of the law, which was the people's
speedy pursuit of the enemy. Whence it is
clear, that the people, including the princes,
hath a ministerial power to expone the law
aright, and according to its genuine intent,
and that the king, as king, hath no absolute
power to expone the law as he pleaseth.
2. The king's absolute pleasure can no
more be the genuine sense of a just law than
his absolute pleasure can be a law ; because
the genuine sense of the law is the law itself,
as the formal essence of a tiling differeth
not really, but in respect of reason, from
the thing itself. The Pope and Romish
church cannot put on the Scripture, ex
plenitudine potestatis, whatever meaning
they will, no more than they can, out of
absolute power, make canonic scripture.
Now so it is, that the king, by his absolute
power, cannot make law no law. 1. Because
he is king by, or according to, law, but he is
not king of law. Rex est rex secundum
legem, sed non est dominus et rex legis. 2.
Because, although it have a good meaning,
which Ulpian saith, " Quod principi placet
legis vigorem habet," — the will of the prince
is the law ; yet the meaning is not that any-
thing is a just law, because it is the prince's
will, for its rule formally; for it must be
good and just before the prince can will it, —
and then, he finding it so, he putteth the
stamp of a human law on it.
3. This is the difference between God's
will and the will of the king, or any mortal
creature. Things are just and good, because
God willeth them, — especially things posi-
tively good, (though I conceive it hold in all
things,) and God doth not will things, be-
cause they are good and just ; but the crea-
ture, be he king or any never so eminent,
do will things, because they are good and
just, and the king's willing of a thing maketh
it not good and just ; for only God's will —
not the creature's — can be the cause why
things are good and just. If, therefore, it
be so, it must undeniably hence follow, that
the king's will maketh not a just law to
have an unjust and bloody sense ; and he
cannot, as king, by any absolute super-domi-
nion over the law, put a just sense on a
bloody and unjust law.
4. The advancing of any man to the
throne and royal dignity putteth not the
man above the number of rational men.
No rational man can create, by any act of
power never so transcendent or boundless, a
sense to a law contrary to the law. Nay,
give me leave to doubt if Omnipotence can
make a just law to have an unjust and
bloody sense, aut contra, because it involveth
a contradiction ;— the true meaning of a law
being the essential form of the law. Hence
judge what brutish, swinish flatterers they
are who say, " That it is the true meaning
of the law which the king, the only supreme
and independent expositor of the law, saith
is the true sense of the law." There was
once an animal — a fool of the first magnitude
— who said he could demonstrate, by invin-
cible reasons, that the king's dung was more
nourishing food than bread of the flour of
the finest wheat. For my part I could wish
it were the demonstrator's only food for
seven days, and that should be the best
demonstration he could make for his pi-oof.
5. It must follow that there can be no
necessity of written laws to the subjects,
against Scripture and natural reason, and
the law of nations, in which all accord : that
laws not promulgated and published cannot
oblige as law ; yea, Adam, in his innocency,
was not obliged to obey a law not written in
his heart by nature, except God had made
known the law; as is clear, Gen. iii. 11,
" Hast thou eaten of the tree whereof I
commanded thee that thou shouldest not
eat?" But if the king's absolute will may
put on the law what sense he pleaseth, out
of his independent and irresistible supremacy,
the laws promulgated and written to the
subjects can declare nothing what is to be
done by the subjects as just, and what is to
be avoided as unjust ; because the laws must
signify to the subjects what is just and what
is unjust, according to their genuine sense.
Now, their genuine sense, according to roy-
alists, is not only uncertain and impossible
to be known, but also contradictory ; for the
king obligeth us, without gainsaying, to be-
lieve that the just law hath this unjust sense.
Hence this of flattering royalists is more
cruel to kings than ravens, (for these eat but
dead men, while they devour living men,)
"When there is a controversy between the
king and the estates of parliament, who shall
expone the law and render its native mean-
ing ? Royalists say, Not the estates of parlia-
ment, for they are subjects, not judges, to
| the king, and only counsellors and advisers
THE LAW AND THE PRINCE.
139
of the king. The king, therefore, must
be the only judicial and final expositor. " As
for lawyers, (said Strafford,) the law is not
enclosed in a lawyer's cap." But I remem-
ber this was one of the articles laid to the
charge of Richard II., that he said, " The
law was in his head and breast." * And,
indeed, it must follow, if the king, by the
plenitude of absolute power, be the only
supreme uncontrollable expositor of the law,
that is not law which is written in the acts
of parliament, but that is the law which is in
the king's breast and head, which Josephus
(lib. 19, Antiq. c. 2.) objected to Caius.
And all justice and injustice should be finally
and peremptorily resolved on the king's will
and absolute pleasure.
6. The king either is to expone the law by
the law itself; or by his absolute power, loosed
from all law, he exponeth it ; or according to
the advise of his great senate. If the first be
said, he is nothing more than other judges.
If the second be said, he must be omnipo-
tent, and more. If the third be said, he is
not absolute, if the senate be only advisers,
and he yet the only judicial expositor.
The king often professeth his ignorance of
the laws ; and he must then both be abso-
lute above the law, and ignorant of the law,
and the sole and final judicial exponer of
the law. And by this, all parliaments, and
their power of making laws, and of judging,
are cried down.
05;. 1. — Prov. xvi. 10, " A divine sen-
tence is in the lips of the king ; his mouth
trangresseth not in judgment;" therefore
he only can expone the law.
Ans. — Lavater saith, (and I see no rea-
son on the contrary,) " By a king he mean-
eth all magistrates." Aben Ezra and Isi-
dorus read the words imperatively. The
Tigurine version, — " They are oracles which
proceed from his lips ; let not therefore his
mouth transgress in judgment." Vatabu-
lus, — " When he is in his prophecies, he
lieth not." Jansenius, — " Non facile er-
rabit in judicando." Mich. Jermine, —
" If he pray." Calvin, — " If he read in the
book of the law, as God commandeth him,"
Deut. xvii. But why stand we on the place ?
" He speaketh of good kings, (saith Cor-
nel, a Lapide,) otherwise Jeroboam, Ahab,
and Manasseh, erred in judgment." " And
except (as Mercerus exponeth it) we under -
i Imperator se leges in scrinio condere dicit. 1.
omnium. C. de testam.
stand him to speak of kings according to
their office, not their facts and practice, we
make them popes, and men who cannot give
out grievous and unjust sentences on the
throne," — against both the "Word and ex-
perience.
06/. 2. — Sometimes all is cast upon one
man's voice ; why may not the king be this
one man ?
Ans. — The antecedent is false ; the last
voter in a senate is not the sole judge, else
why should others give suffrages with him ?
This were to take away inferior judges, con-
trary to God's word, Deut. i. 17 ; 2 Chron.
xix. 6, 7 ; Rom. xiii. 1 — 3.
QUESTION XXVIII.
WHETHER OR NO WARS RAISED BY THE SUB-
JECTS AND ESTATES, FOR THEIR OWN JUST
DEFENCE AGAINST THE KING'S BLOODY
EMISSARIES, BE LAWFUL.
Arnisreus pervertcth the question ; he
saith, " The question is, Whether or no
the subjects may, according to their power,
judge the king and dethrone him ; that is,
Whether or no it is lawful for the subjects
in any case to take arms against their lawful
prince, if he degenerate, and shall wickedly
use his lawful power."
1. The state of the question is much per-
verted, for these be different questions,
Whether the kingdom may dethrone a
wicked and tyrannous prince, and whether
the kingdom may take up arms against the
man who is the king, in their own innocent
defence. For the former is an act offensive,
and of punishing ; the latter is an act of de-
fence.
2. The present question is not of subjects
only, but of the estates, and parliamentary
lords of a kingdom. I utterly deny these,
as they are judges, to be subjects to the
king ; for the question is, Whether is the
king or the representative kingdom greatest,
and which of them be subject one to an-
other? I affirm, amongst judges, as judges,
not one is the commander or superior, and
the other the commanded or subject. In-
deed, one higher judge may correct and
punish a judge, not as a judge, but as an
erring man.
3. The question is not so much concern-
ing the authoritative act of war, as concern-
140
LEX, REX ; OR,
ing the power of natural defence, upon sup-
position, that the king be not now turned
an habitual tyrant ; but that upon some
acts of misinformation, he come in arms
against his subjects.
Arniseeus maketh two sort of kings, —
" Some kings integrce majestatis, of entire
power and sovereignty ; some kings by pac-
tions, or voluntary agreement between king
and people." But I judge this a vain dis-
tinction; for the limited prince, so he be
limited to a power only of doing just and
right, by this is not a prince integrce ma-
jestatis, of entire royal majesty, whereby he
may both do good and also play the tyrant ;
but a power to do ill being no ways essen-
tial, yea, repugnant to the absolute majesty
of the King of kings, cannot be an essential
part of the majesty of a lawful king ; and
therefore the prince, limited by voluntary
and positive paction only to rule according
to law and equity, is the good, lawful, and
entire prince, only if he have not power to
do every thing just and good in that regard,
he is not an entire and complete prince. So
the man will have it lawful to resist the
limited prince, not the absolute prince ; by
the contrary, it is more lawful to me to re-
sist the absolute prince than the limited,
inasmuch as we may with safer consciences
resist the tyrant and the lion, than the just
pi'ince and lamb. Nor can I assent to (Jun-
nerius (de officio vrincip. Christia. c. 5 and
17,) who holdeth, " that these voluntary
pactions betwixt king and people, in which
the power of the prince is diminished, can-
not stand, because their power is given to
them by God's word, which cannot be taken
from them by any voluntary paction, law-
fully;" and from the same ground, Winzetus
(in velit. contr. Buchan. p. 3) " will have
it unlawful to resist kings, because God hath
made them irresistible." I answer, — If
God, by a divine institution, make kings ab-
solute, and above all laws, (which is a blas-
phemous supposition — the holy Lord can give
to no man a power to sin, for God hath not
himself any such power.) then the covenant
betwixt the king and people cannot lawfully
remove and take away what God by insti-
tution has given ; but because God (Deut.
xvii.) hath limited the first lawful king, the
mould of all the rest, the people ought also
to limit him by a voluntary covenant ; and
| , because the lawful power of a king to do
good is not by divine institution placed in an
indivisible point. It is not a sin tor the people
to take some power, even of doing good, from
the king, that he solely, and by himself, shall
not have power to pardon an involuntary ho-
micide, without advice and the judicial suf-
frages of the council of the kingdom, least
he, instead of this, give pardons to robbers,
to abominable murderers ; and in so doing,
the people robbeth not the king of the power
that God gave him as king, nor ought the
king to contend for a sole power in himself
of ministering justice to all ; for God layeth
not upon kings burdens impossible ; and God
by institution hath denied to the king all
power of doing all good; because it is his
will that other judges be sharers with the
king in that power, (Num. xiv. 16 ; Duet,
i. 14—17; 1 Pet. ii. 14; Rom. xiii. 1—4;)
and therefore the duke of Venice, to me,
cometh nearest to the king moulded by God,
(Deut. xvii.) in respect of power, de jure,
of any king I know in Europe. And in
point of conscience, the inferior judge dis-
cerning a murderer and bloody man to die,
may in foro conscientice despise the king's
unjust pardon, and resist the king's force by
his co-active power that God hath given
him, and put to death the bloody murderer ;
and he sinneth if he do not this ; for to me
it is clear, that the king cannot judge so
justly and understandingly of a murderer in
Scotland, as a judge to whom God hath
committed the sword in Scotland. Nor
hath the Lord laid that impossible burden
on a king to judge so of a murder four hun-
dred miles removed from the king, as the
judge nearer to him, as is clear by Num.
xiv. 16; 1 Sam. vii. 15—17. The king
should go from place to place and judge ;
and whereas it is impossible to him to go
through three kingdoms, he should appoint
faithful judges, who may not be resisted, —
no, not by the king.
1. The question is, If the king command
A. B. to kill his father or his pastor, — the
man neither being cited nor convicted of
any fault, he may lawfully be resisted.
2. Queritur. — If, in that case in which
the king is captived, imprisoned, and not
sui juris, and awed or overawed by bloody
papists, and so is forced to command a
barbarous and unjust war; and if, being
distracted physically or morally through
wicked counsel, he command that which no
father in his sober wits would command,
even against law and conscience, — that the
sons should yield obedience and subjection
to him in maintaining, with lives and goods,
THE LAW AND THE PRINCE.
141
a bloody religion and bloody papists : if in
that case the king may not be resisted in
his person, because the power lawful and
the sinful person cannot be separated. We
hold, that the king using, contrary to the
oath of God and his royal office, violence
in killing, against law and conscience, his
subjects, by bloody emissaries, may be re-
sisted by defensive wars, at the command-
ment of the estates of the kingdom.
But before I produce arguments to prove
the lawfulness of resistance, a little of the
case of resistance. 1. Br Feme (part 3,
sect. 5, p. 39) granteth resistance by force
to the king to be lawful, when the assault is
sudden, without colour of a law or reason,
and inevitable. But if Nero burn Borne, he
hath a colour of law and reason ; yea, though
all Borne, and his mother, in whose womb
he lay, were one neck. A man who will
with reason go mad, hath colour of reason,
and so of law, to invade and kill the inno-
cent. 2. Arnisseus saith, (c. 2, n. 10,) " If
the magistrate proceed extra-judicialiter,
without order of law by violence, the laws
giveth every private man power to resist, if
the danger be irrecoverable ; yea, though it
be recoverable." (L. prohibitum, C. de
jur. Jisc. I. que madmodum, sect. 39, ma-
gistratus ad I. aquil. I. nee. magistratibus,
32, de injur.) Because, while the magis-
trate doth against his office, he is not a
magistrate ; for law and right, not injury,
should come from the magistrate. (L. me-
minerint. 6, C. unde vi.) Yea, if the ma-
gistrate proceed judicially, and the loss be
irrecoverable, jurists say that a private
man hath the same law to resist. (Maran-
tius. dis. 1, n. 35). And in a recoverable
loss they say, every man is holden to resist,
si evidenter constet de iniquitate, if the ini-
quity be known to all. (D. D. Jason, n.
19, des. n. 26, ad I. ut vim dejust. et jur.)
3. I would think it not fit easily to resist
the king's unjust exactors of custom or tri-
bute. (1.) Because Christ paid tribute to
Tiberius Caesar, an unjust usurper, though
he was free from that, by God's law, lest
he should offend. (2.) Because we have a
greater dominion over goods than over our
lives and bodies ; and it is better to yield in
a matter of goods than to come to arms, for
of sinless evils we may choose the least. 4.
A tyrant, without a title, may be resisted
by any private man. Quia licet vim vi re-
pellere, because we may repel violence by
violence; yea, he may be killed. Ut I. et
vim. F. de instit. et jure, ubi plene per om-
nes. Vasquez, 1. 1, c. 3, n. 33 ; Barclaius,
contra Monarch. 1. 4, c. 10, p. 268.
For the lawfulness of resistance in the
matter of the king's unjust invasion of life
and religion, we offer these arguments.
Arg. 1. — That power which is obliged to
command and rule justly and religiously for
the good of the subjects, and is only set over
the people on these conditions, and not abso-
lutely, cannot tie the people to subjection
without resistance, when the power is abused
to the destruction of laws, religion, and the
subjects. But all power of the law is thus
obliged, (Rom. xiii. 4 ; Deut. xvii. 18 — 20 ;
2 Chron. xix. 6 ; Ps. exxxii. 11, 12 ; Ixxxix.
30, 31; 2 Sam. vii. 12; Jer. xvii. 24, 25,)
and hath, and may be, abused by kings, to
the destruction of laws, religion, and sub-
jects. The proposition is clear. 1. For the
powers that tie us to subjection only are of
God. 2. Because to resist them, is to re-
sist the ordinance of God. 3. Because they
are not a terror to good works, but to evil.
4. Because they are God's ministers for our
good, but abused powers are not of God, but
of men, or not ordinances of God ; they are
a terror to good works, not to evil ; they are
not God's ministers for our good.
Arg. 2. — That power which is contrary
to law, and is evil and tyrannical, can tie
none to subjection, but is a mere tyrannical
power and unlawful; and if it tie not to sub-
jection, it may lawfully be resisted. But the
power of the king, abused to the destruction
of laws, religion, and subjects, is a power con-
trary to law, evil, and tyrannical, and tyeth
no man to subjection : wickedness by no ima-
ginable reason can oblige any man. Obliga-
tion to suffer of wicked men falleth under
no commandment of God, except in our Sa-
viour. A passion, as such, is not formally
commanded, I mean a physical passion, such
as to be killed. God hath not said to me in
any moral law, Be thou killed, tortured, be-
headed ; but only, Be thou patient, if God
deliver thee to wicked men's hands, to suffer
these things.
Arg. 3. — There is not a stricter obligation
moral betwixt king and people than betwixt
parents and children, master and servant,
patron and clients, husband and wife, the
lord and the vassal, between the pilot of a
ship and the passengers, the physician and
the sick, the doctor and the scholars, but
the law granteth, (I. Minime 35, de Relig.
et sumpt. funer,) if these betray their trust
142
LEX, REX ; OR,
committed to them, they may be resisted : if
the father turn distracted,' and arise to kill
his sons, his sons may violently apprehend
him, and bind his hands, and spoil him of
his weapons ; for in that he is not a father.
Vasquez, (Lib. 1, Tllustr. quest, c. 8, n.
18,,) — Si dominus subditum enormiter et
atrociter oneraret, princeps superior vas-
sallum posset ex toto eximere a sua juris-
diction, et etiam tacente subdito et nihil
petente. Quid papa in suis decis. parliam.
grat. decis. 62. Si quis Baro. abutentes
dominio privari possunt. The servant may
resist the master if he attempts unjustly to
kill him, so may the wife do to the husband;
if the pilot should wilfully run the ship on a
rock to destroy himself and his passengers,
they might violently thrust him from the
helm. Every tyrant is a furious man, and
is morally distracted, as Althusius saith,
Polit. c. 28, n. 30, and seq.
Arg. 4. — That which is given as a bless-
ing, and a favour, and a screen, between
the people's liberty and their bondage, can-
not be given of God as a bondage and sla-
very to the people. But the power of a
king is given as a blessing and favour of
God to defend the poor and needy, to pre-
serve both tables of the law, and to keep
the people in their liberties from oppress-
ing and treading one upon another. But
so it is, that if such a power be given of
God to a king, by which, actu primo, he is
invested of God to do acts of tyranny, and
so to do them, that to resist him in the
most innocent way, which is self-defence,
must be a resisting of God, and rebellion
against the king, his deputy ; then hath
God given a royal power as uncontrollable
by mortal men, by any violence, as if God
himself were immediately and personally
resisted, when the king is resisted, and so
this power shall be a power to waste and
destroy irresistibly, and so in itself a plague
and a curse ; for it cannot be ordained both
according to the intention and genuine for-
mal effect and intrinsical operation of the
f>ower, to preserve the tables of the law, re-
igion and liberty, subjects and laws, and
also to destroy the same. But it is taught
by royalists that this power is for tyranny,
as well as for peaceable government ; because
to resist this royal power put forth in acts
either ways, either in acts of tyranny or
just government, is to resist the ordinance
of God, as royalists say, from Rom. xhi. 1
— 3. And we know, to resist God's or-
dinances and God's deputy, formaliter, as
his deputy, is to resist God himself, (1 Sam.
viii. 7 ; Matt. x. 40,) as if God were doing
personally these acts that the king is doing ;
and it importeth as much as the King of
kings doth these acts in and through the
tyrant. Now, it is blasphemy to think or
say, that when a king is drinking the blood
of innocents, and wasting the church of God,
that God, if he were personally present,
would commit these same acts of tyranny,
(God avert such blasphemy !) and that God
in and through the king, as his lawful de-
puty and vicegerent in these acts of tyran-
ny, is wasting the poor church of God. If
it be said, in these sinful acts of tyranny, he
is not God's formal vicegerent, but only in
good and lawful acts of government, yet he
is not to be resisted in these acts, not be-
cause the acts are just and good, but be-
cause of the dignity of his royal person.
Yet this must prove that those who resist
the king in these acts of tyranny, must re-
sist no ordinance of God, but only resist
him who is the Lord's deputy, though not
as the Lord's deputy. What absurdity is
there in that more than to disobey him, re-
fusing active obedience to him who is the
Lord's deputy, not as the Lord's deputy,
but as a man commanding besides his mas-
ter's warrant ?
Arg. 5. — That which is inconsistent with
the care and providence of God in giving a
king to his church is not to be taught.
Now God's end in giving a king to his
church, is the feeding, safety, preservation,
and the peaceable and quiet life of his
church. (1 Tim. ii. 2 ; Isa. xlix. 23 ; Psal.
lxxix. 71). But God should cross his own
end in the same act of giving a king, if he
should provide a king, who, by office, were
to suppress robbers, murderers, and all op-
pressors and wasters in his holy mount,
and yet should give an irresistible power to
one crowned lion, a king, who may kill ten
hundred thousand protestants for their re-
ligion, in an ordinary providence ; and they
are by an ordinary law of God to give their
throats to his emissaries and bloody execu-
tioners. If any say the king will not be so
cruel, — I believe it ; because, actu secundo,
it is not possibly in his power to be so cruel.
We owe thanks to his good will that he
killeth not so many, but no thanks to the
nature and genuine intrinsical end of a king,
who hath power from God to kill all these,
and that without resistance made by any
THE LAW AND THE PRINCE.
143
mortal man. Yea, no thanks (God avert
blasphemy !) to God's ordinary providence,
which (if royalists may be believed) putteth
no bar upon the unlimited power of a man
inclined to sin, and abuse his power to so
much cruelty. Some may say, the same
absurdity doth follow if the king should
turn papist, and the parliament all were
papists. In that case there might be so
many martyrs for the truth put to death,
and God should put no bar of providence
upon this power, then more than now ;
and yet, in that case, the king and parlia-
ment should be judges given of God, actu
primo, and by virtue of their office obliged
to preserve the people in peace and godli-
ness. But I answer, If God gave a lawful
official power to king and parliament to
work the same cruelty upon millions of
martyrs, and it should be unlawful for them
by arms to defend themselves, I should
then think that king and parliament were
both ex officio, by virtue of their office, and
actu primo, judges and fathers, and also by
that same office, murderers and butchers, —
which were a grievous aspersion to the un-
spotted providence of God.
Arg. 6. — If the estates of a kingdom give
the power to a king, it is their own power
in the fountain ; and if they give it for their
own good, they have power to judge when
it is used against themselves, and for their
evil, and so power to limit and resist the
power that they gave. Now, that they may
take away this power, is clear in Athaliah's
case. It is true she was a tyrant without a
title, and had not the right of heaven to the
crown, yet she had, in men's court, a title.
For supposing all the royal seed to be
lulled, and the people consent, we cannot
say that, for these six years or thereabout,
she was no magistrate : that there were none
on the throne of David at this time : that she
was not to be obeyed as God's deputy. But
grant that she was no magistrate ; yet when
Jehoash is brought forth to be crowned, it
was a controversy to the states to whom the
crown should belong. 1. Athaliah was in
possession. 2. Jehoash himself being but
seven years old, could not be judge. 3. It
might be doubted if Joash was the true son
of Ahaziah, and if he was not killed with
the rest of the blood royal.
Two great adversaries say with us ; Hugo
Grotius (dejur. belli et pads, I. 1, c. 4, n.
7,) saith he dare not condemn this, if the
lesser part of the people, and every one of
them indifferently, should defend them-
selves against a tyrant, ultimo necessitatis
prcesidio. The case of Scotland, when we
were blocked up by sea and land with
armies : the case of England, when the king,
induced by prelates, first attempted to bring
an army to cut off the parliament, and
then gathered an army, and fortified York,
and invaded Hull, to make the militia his
own, sure is considerable. Barclay saith,
the people hath jus se tuendi adversus im-
manent scevitiem, (advers. Monarch. I. 3,
c. 8,) a power to defend themselves against
prodigious cruelty. The case of England
and Ireland, now invaded by the bloody
rebels of Ireland, is also worthy of consi-
deration. I could cite hosts more.
QUESTION XXIX.
WHETHER, IN THE CASE OF DEFENSIVE WAR,
THE DISTINCTION OF THE PERSON OF THE
KING, AS A MAN, WHO CAN COMMIT ACTS
OF HOSTILE TYRANNY AGAINST HIS SUB-
JECTS, AND OF THE OFFICE AND ROYAL
POWER THAT HE HATH FROM GOD AND
THE PEOPLE, AS A KING, CAN HAVE
PLACE.
Before I can proceed to other Scripture
proofs for the lawfulness of resistance, this
distinction, rejected by royalists, must be
cleared. This is an evident and sensible
distinction : — The king in concreto, the man
who is king, and the king in abstracto, the
royal office of the king. The ground of this
distinction we desire to be considered from
Rom. xiii. We affirm with Buchanan, that
Paul here speaketh of the office and duty of
good magistrates, and that the text speak-
eth nothing of an absolute king, nothing
of a tyrant ; and the royalists distinguish
where the law distinguished not, against
the law, (1. pret. 10, gl. Bart, de pub. in
Rem.) ; and therefore we move the question
here, Whether or no to resist the illegal and
tyrannical will of the man who is king, be
to resist the king and the ordinance of
God ; we say no. Nor do we deny the
king, abusing his power in unjust acts, to
remain king, and the minister of God, whose
person for his royal office, and his royal
office, are both to be honoured, reverenced,
and obeyed. God forbid that we should do
so as the sons of Belial, imputing to us the
144
LEX, REX ; OR,
doctrine of anabaptists, and the doctrine
falsely imputed to Wicliffe, — that dominion
is founded upon supernatural grace, and
that a magistrate being in the state of mor-
tal sin, cannot be a lawful magistrate, — we
teach no such thing. The P. Prelate show-
eth us his sympathy with papists, and that
he buildeth the monuments and sepulchres
of the slain and murdered prophets, when
he, refusing to open his mouth in the gates
for the righteous, professeth he will not
purge the witnesses of Christ, the Wal-
denses, and Wicliffe, and Huss, of these
notes of disloyalty, but that these acts pro-
ceeding from this root of bitterness, the
abused power of a king, should be acknow-
ledged with obedience active or passive, in
these unjust acts, we deny.
Assert. 1. — It is evident from Rom. xiii.
that all subjection and obedience to higher
powers commanded there, is subjection to
the power and office of the magistrate in
abstracto, or, which is all one, to the person
using the power lawfully, and that no sub-
jection is due by that text, or any word of
God, to the abused and tyrannical power of
the king, which I evince from the text, and
from other Scriptures.
1. Because the text saith, " Let every
soul be subject to the higher powers." But
no powers commanding things unlawful, and
killing the innocent people of God, can be
ixwrlai vvipx<"><>-' higher powers, but in that
lower powers. lie that commandeth not
what God commandeth, and punisheth and
killeth where God, if personally and imme-
diately present, would neither command nor
punish, is not in these acts to be subjected
unto, and obeyed as a superior power,
though in habit he may remain a superior
power ; for all habitual, all actual superiority
is a formal participation of the power of the
Most High. Arnisseus well saith, (c. 4, p.
96,) " That of Aristotle must be true, It is
against nature, better and worthier men
should be in subjection to un worthier and
more wicked men ;" but when magistrates
command wickedness, and kill the innocent,
the non-obeyers, in so far, are worthier
than the commanders (whatever they be in
habit and in office) actually, or in these
wicked acts are unworthier and inferior, and
the non-obeyers are in that worthier, as being
zealous adherents to God's command and
not to man's will. I desire not to be mis-
taken ; if we speak of habitual excellency,
godly and holy men, as the witnesses of
Christ in things lawful, are to obey wicked
and infidel kings and emperors, but in that
these wicked kings have an excellency in
respect of office above them ; but when they
command things unlawful, and kill the in-
nocent, they do it not by virtue of any
office, and so in that they are not higher
powers, but lower and weak ones. Laertius
doth explain Aristotle well, who defineth a
tyrant by this, " That he commandeth his
subjects by violence ;" and Arnisaeus con-
demneth Laertius for this, " Because one
tyrannical action doth no more constitute a
tyrant, than one unjust action doth consti-
tute an unjust man." But he may con-
demn, as he doth indeed, (Covarruvias pract.
quest, c. 1, and Vasquez Illustr. quest. 1. 1,
c. 47, n. 1, 12,) for this is essential to a
tyrant, to command and rule by violence.
If a lawful prince do one or more acts of a
tyrant, he is not a tyrant for that, yet his
action in that is tyrannical, and he doth not
that as a king, but in that act as a sinful
man, having something of tyranny in him.
2. The powers (Rom. xiii. 1) that be, are
ordained of God, as their author and effi-
cient ; but kings commanding unjust things,
and killing the innocent, in these acts, are
but men, and sinful men ; and the power
by which they do these acts, a sinful and an
usurped power, and so far they are not
powers ordained of God, according to his
revealed will, which must rule us. Now
the authority and official power, in ab-
stracto, is ordained of God, as the text
saith, and other Scriptures do evidence.
And this politicians do clear, while they dis-
tinguish betwixt jus personal, and jus co-
rona;, the power of the person, and the power
of the crown and royal office. They must
then be two different things.
3. He that resisteth the power, that is,
the official power, and the king, as king,
and commanding in the Lord, resisteth the
ordinance of God, and God's lawful consti-
tution. But he who resisteth the man, who
is the king, commanding that which is
against God, and killing the innocent, re-
sisteth no ordinance of God, but an ordi-
nance of sin and Satan ; for a man command-
ing unjustly, and ruling tyrannically, hath,
in that, no power from God.
4. They that resist the power and royal
office of the king in things just and right,
shall receive to themselves damnation, but
they that resist, that is, refuse, for con-
science, to obey the man who is the king,
TIIC LAW AND THE PRINCE.
145
and choose to obey God rather than man,
as all the martyrs did, shall receive to them-
selves salvation. And the eighty valiant
men, the priests, who used bodily violence
against king Uzziah's person, " and thrust
him out of the house of the Lord," from
offering incense to the Lord, which be-
longed to the priest only, received not
damnation to themselves, but salvation in
doing God's will, and in resisting the king's
wicked will.
5. The lawful ruler, as a ruler, and in
respect of his office, is not to be resisted,
because he is not a terror to good works,
but to evil ; and no man who doth good is
to be afraid of the office or the power, but
to expect praise and a reward of the same.
But the man who is a king may command
an idolatrous and superstitious worship-
send an army of cut-throats against them,
because they refuse that worship, and may
reward papists, prelates, and other corrupt
men, and may advance them to places of
state and honour because they kneel to a
tree altar, — pray to the east, — adore the
letters and sound of the word Jesus — teach
and write Arminianism, and may imprison,
deprive, confine, cut the ears, and slit the
noses, and burn the faces of those who speak
and preach and write the truth of God ; and
may send armies of cut-throats, Irish rebels,
and other papists and malignant atheists, to
destroy and murder the judges of the land,
and innocent defenders of the reformed re-
ligion, &c, — the man, I say, in these acts
is a terror to good works, — an encourage-
ment to evil ; and those that do good are to
be afraid of the king, and to expect no
praise, but punishment and vexation from
him ; therefore, this reason in the text
will prove that the man who is the king,
in so far as he doth those things that are
against his office, may be resisted ; and that
in these we are not to be subject, but only
we are to be subject to his power and royal
authority, in abstracto, in so far as, accord-
ing to his office, he is not a terror to good
works, but to evil.
6. The lawful ruler is the minister of
God, or the servant of God, for good to the
commonwealth ; and to resist the servant in
that* wherein he is a servant, and using the
power that he hath from his master, is to
resist the Lord his master. But the man
who is the king, commanding unjust things,
and killing the innocent, in these acts is not
the minister of God for the good of the
commonwealth; — he serveth himself, and
papists, and prelates, for the destruction of
religion, laws, and commonwealth ; there-
fore the man may be resisted, by this text,
when the office and power cannot be
resisted.
7. The ruler, as the ruler, and the nature
and intrinsical end of the office is, that he
bear God's sword as an avenger to execute
wrath on him that doth evil, — and so cannot
be resisted without sin. But the man who
is the ruler, and commandeth things unlaw-
ful, and killeth the innocent, carrieth the
papist's and prelate's sword to execute, not
the righteous judgment of the Lord upon
the ill-doer, but nis own private revenge
upon him that doth well ; therefore, the
man may be resisted, the office may not
be resisted ; and they must be two different
things.
8. We must needs be subject to the royal
office for conscience, by reason of the fifth
commandment ; but we must not needs be
subject to the man who is king, if he com-
mand things unlawful ; for Dr Feme war-
ranteth us to resist, if the ruler invade us
suddenly, without colour of law or reason,
and unavoidably; and Winzetus, Barclay,
and Grotius, as before I cited, give us leave
to resist a king turning a cruel tyrant ; but I
Paul (Rom. xiii.) forbiddeth us to resist the
power, in abstracto ; therefore, it must be
the man, in concreto, that we must resist.
9. Those we may not resist to whom we
owe tribute, as a reward of the onerous
work on which they, as ministers of God,
do attend continually. But we owe not
tribute to the king as a man, — for then
should we be indebted tribute to all men, —
but as a king, to whom the wages of tribute
is due, as to a princely workman, — a king as
a king ; — therefore, the man and the king-
are different.
10. We owe fear and honour as due to
be rendered to the man who is king, because
he is a king, not because he is a man ; for
it is the highest fear and honour due to any ,
mortal man, which is due to the king, as
king.
11. The man and the inferior judge are
different ; and we cannot, by this text,
resist the inferior judge, as a judge, but we
resist the ordinance of God, as the text
proveth. But cavaliers resist the inferior
judges as men, and have killed divers
members of both houses of parliament ; but
they will not say that they killed them as
x
146
LKX, REX ; OR,
judges, but as rebels. If, therefore, to be a
rebel, as a wicked man, and to be a judge,
are differenced thus, then, to be a man,
and commit some acts of tyranny, and to be
the supreme judge and king, are two diffe-
rent things.
12. The congregation, in a letter to the
nobility, (Knox, Hist, of Scotland, 1. 2.) say,
" There is great difference betwixt the au-
thority, which is God's ordinance, and the
persons of those who are placed in authority.
The authority and God's ordinance can never
do wrong, for it commandeth that vice and
wicked men be punished, and virtue, with
virtuous men and just, be maintained ; but
the corrupt person placed in this authority
may offend, and most commonly do contrary
to this authority. And is then the corrup-
tion of man to be followed, by reason that
it is clothed with the name of authority ?"
And they give instance in Pharaoh and
Saul, who were lawful kings and yet corrupt
men. And certainly the man and the divine
authority differ, as the subject and the acci-
dent,— as that which is under a law and can
offend God, and that which is neither capa-
ble of law nor sin.
13. The king, as king, is a just creature,
and by office a living and breathing law. His
will, as he is king, is nothing but a just law;
but the king, as a sinful man, is not a just
creature, but one who can sin and play the
tyrant ; and his will, as a private sinful man,
is a private will, and may be resisted. So the
law saith, " The king, as king, can do no
wrong," but the king, as a man, may do a
wrong. While as, then, the parliaments of
both kingdoms resist the king's private will,
as a man, and fight against his illegal cut-
throats, sent out by him to destroy his native
subjects, they fight for him as a king, and
obey his public legal will, which is his royal
will, de jure ; and while he is absent from
his parliaments as a man, he is legally and
in his law-power present, and so the parlia-
ments are as legal as if he were personally
present with them.
Let me answer royalists. — The P. Prelate
saith it is Solomon's word, " By me kings
reign ;" — kings, in concreto, with their sove-
reignty. He saith not, by me royalty or
sovereignty reigneth. And elsewhere he
saith that Barclay saith, " Paul, writing to
the Romans, keepeth the usual Roman dic-
tion in this, — who express by powers, in ab-
stractor the persons authorised by power, —
and it is the Scripture's dialect: by him
were created " thrones, dominions, princi-
palities," that is, angels; to say angels, in
abstracto, were created, (2 Pet. ii. 10,)
They " speak evil of dignities," Jude viii.,
" despise dominion," that is, they speak ill
of Cajus, Caligula, Nero. Our Levites rail
against the Lord's anointed, — the best of
kings in the world. Nero, (Rom. xii. 4,)
in concreto, beareth not the sword in vain.
Arnisaeus saith it better than the Prelate,1
(he is a witless thief,) Rom. xiii. 4, " The
royal power, in abstracto, doth not bear the
sword, but the person; not the power, but
the prince himself beareth the sword." And
the Prelate, poor man, following Dr Feme,
saith, " It is absurd to pursue the king's
person with a cannon bullet at Edgehill, and
preserve his authority at London, or else-
where." So saith Feme, (sect. 10, p. 64,)
" The concrete powers here are purposed as
objects of our obedience, which cannot be
directed but upon power in some person ; for
it is said, «; dca, «!«!«■;«< The powers that be
are of God." Now power cannot be ,irx
existent but in some person ; and, saith
Feme, " Can power in the abstract have
praise ? Or is tribute paid to the power in
the abstract ? Yea, the power is the reason
why we yield obedience to the person," &c.
The Prelate hath as much learning as to
copy out of Feme, Barclay, Arnisaeus, and
others, these words and the like, but hath
not wit to add the sinews of these authors'
reason ; and with all this he can in his pre-
face call it his own, and " provoke any to
answer him if they dare ;" whereas, while I
answer this excommunicated pamphleteer, I
answer these learned authors, from which
he stealeth all he hath ; and yet he must
persuade the king he is the only man who
can defend his Majesty's cause, and " the
importunity (forsooth) of friends extorted
this piece," as if it were a fault that this
delphic oracle (giving out railings and lies
for responses) should be silent. 1. Not we
only, but the Holy Ghost, in terminis, hath
this distinction, Acts iv. 19 ; v. 29, " We
ought to obey God rather than men." Then
rulers (for of rulers sitting in judgment is
that speech uttered) commanding and ty-
rannising over the apostles, are men con-
tradistinguished from God ; and as they
command and punish unjustly, they are but
men, otherwise commanding for God, they
are gods, and more than men. 2. From
1 ArniBaeus de potest, princip. c. 2, 11, 17.
THE LAW AND THE PRINCE.
147
Theophylact also, or from Chrysostom on
Rom. xiii. we have this, — The apostle
speaketh not (say they) <r.j) «wi **6 i™™
i^itruv, iXXa. «•!£< aurou rou v^iy/utrcf. 3.
Sovereignty or royalty doth not properly
reign or bear the sword, or receive praise,
and this accident doth not bear a sword ;
nor do we think (or Paul speak, Rom. xiii.)
of the abstracted due of power and royalty,
subsisting out of its subject ; nor dream we
that the naked accident of royal authority
is to be feared and honoured as the Lord's
anointed ; the person or man who is the
king, and beareth the crown on his head,
and holdeth the sceptre in his hand, is to
be obeyed. Accidents are not persons ; but
they speak nonsense, and are like brute
beasts who deny that all the kingly honour
due to the king must be due to him as a
king, and because of the royal dignity that
God hath given to him, and not because he
is a man ; for a pursuivant's son is a man ;
and if a pursuivant's son would usurp the
throne, and take the crown on his head,
and the sceptre in his hand, and command
that all souls be subject to such a superior
power, because he is a man, the laws of
Scotland would hang a man for a less fault,
we know ; and the P. Prelate was wont to
edify women, and converted souls to Christ,
with such a distinction as objectum quod
and objectum quo, in the pulpits of Edin-
burgh, and it hath good use here ; we never
took abstract royalty to be the king. The
kings of Scotland of old were not second
notions, and we exclude not the person of
the king ; yet we distinguish, with leave of
the P. Prelate, betwixt the person in linea
physica (we must take physica largly here)
and in linea morali, obedience, fear, tri-
bute, honour is due to the person of the
king, and to the man who is king, not be-
cause of his person, or because he is a man,
(the P. Prelate may know in what notion
we take the name person,) but because
God, by the people's election, hath exalted
him to royal dignity ; and for this cause
ill-doers are to subject their throats and
necks to the sword of the Lord's anointed's
executioner or hangman, with patience,
and willingly ; because, in taking away the
head of ill-doers, for ill-doing, he is acting
the office of the Lord, by whom he reign-
eth ; but if he take away their heads, and
send out the long-tusked vultures and boars
of Babylon, the Irish rebels, to execute his
wrath, as he is in that act a misinformed
man, and wanteth the authority of God's
law and man's law, he may be resisted with
arms. For, 1. If royalists say against this,
then, if a king turn an habitual tyrant, and
induce an hundred thousand Turks to
destroy his subjects upon mere desire of
revenge, they are not to resist, but to be
subject, and suffer for conscience. I am
sure Grotius saith,1 " If a king sell his sub-
jects, he loseth all title to the crown, and
so may be resisted ;" and Winzetus saith,2
" A tyrant may be resisted ;" and Barclay,3
" It is lawful for the people, in case of ty-
ranny, to defend themselves, adversus im-
manent scevetiam, against extreme cruelty."
And I desire the Prelate to answer how
people are subject in suffering such cruelty
of the higher power, because he is God's
ordinance, and a power from God, except
he say, as he selleth his people, and barba-
rously destroyeth by the cut-throat Irish-
men, his whole subjects refusing to worship
idols, he is a man and a sinful man, eatenus,
and an inferior power inspired by wicked
counsel, not a king, eatenus, not a higher
power ; and that in resisting him thus, the
subjects resist not the ordinance of God.
Also suppose king David defend his king-
dom and people against Jesse, his natural
father, who we suppose cometh in against
his son and prince, king David, with a huge
army of the Philistines to destroy him and
his kingdom, if lie shall kill his own native
father in that war, at some Edgehill, how
shall he preserve at Jerusalem that honour
and love that he oweth to his father, by
virtue of the fifth commandment, " Honour
thy father and thy mother, &c," let them an-
swer this ; except king David consider Jesse
in one relation, in abstracto, as his father,
whom he is to obey, and as he is a wicked
man, and a perfidious subject, in another
relation ; and except king David say, he is
to subject himself to his father, as a father,
according to the fifth commandment, and
that in the act of his father's violent inva-
sion, he is not to subject himself to him, as
he is a violent invader, and as a man. Let
the royalist see how he can answer the ar-
gument, and how Levi is not to know his
father and mother, as they are sinful men,
(Deut. xxxiii. 9,) and yet to know and
honour them as parents; and how an Is-
i Grot, de jur. et pacis, 1. 1, c. 4, n. 7.
2 Winzetus Vclitat. adver. Buchanan.
3 Barcl. adv. Monarchom. lib. 3, c. 8.
148
iex, rex; ok,
raelite is not to pity the wife that lieth in
his bosom, when she enticeth him " to go
a whoring after strange gods," but is to kill
her, (Deut. xiii. 6 — 8,) and yet the husband
is to " love the wile, as Christ loved his
church," Eph. v. 25. If the husband take
away his wife's life in some mountain in the
Holy Land, as God's law commandeth, let
the royalists answer us, where is then the
marital love he owes to her, and that re-
spect due to her as she is a wife and a
helper ? 2. But let not the royalist infer that
I am from these examples pleading for the
killing of kings ; for lawful resistance is one
thing, and killing of kings is another, — the
one defensive and lawful, the other offen-
sive and unlawful, so long as he remaineth a
king, and the Lord's anointed ; but if he
be a murderer of his father, who doth coun-
sel his father to come to a place of danger
where he may be killed, and where the king
ought not to be; as Abner was worthy of
death, who watched not carefully king Saul,
but slept when David came to his bedside,
and had opportunity to kill the king ; they
are traitors and murderers of the king, who
either counselled his Majesty to come to
Edgehill, where the danger was so great,
or did not violently restrain him from com-
ing thither, seeing kings' safety and lives
are as much, yea, more, in the disposing of
the people than in their own private will
(2 Sam. xviii. 2, 3) ; for certainly the peo-
ple might have violently restrained king
Saul from killing himself; and the king is
guilty of his own death, and sinneth against
his office and subjects, who comet h out in
person to any such battles where he may be
killed, and the contrary party free of his
blood. And here our Prelate is blind, if
he see not the clear difference between the
king's person and his office as king, and
between his private will and his public and
royal will. 3. The angels may be named
thrones and dominions in abstracto, and yet
created in concreto, and we may say the
angel and his power are both created at
once ; but David was not both born the son
of Jesse and a king at once ; and the P.
Prelate by this may prove it is not lawful
to resist the devil, (tor he is of the number
of these created angels, Col. i.,) as he is a
devil; because in resisting the devil as a
devil, we must resist an angel of God and a
principality. 4. To speak evil of dignities,
(2 Pet. ii. ; Jude viii..) Piscator insinuateth,
is, to speak evil of the very office of rulers,
as well as of their manners ; and Theodat.
saith, on 2 Pet. ii., that " these railers
speak evil of the place of governors and
masters, as unbeseeming believers." All
our interpreters, as Beza, Calvin, Luther,
Bucer, Marloratus, from the place, saith it
is a special reproof of anabaptists and liber-
tines, who in that time maintained that we
are all free men in Christ, and that there
should not be kings, masters, nor any ma-
gistrates. However the abstract is put for
the concrete, it is true, and it saith we are
not to rail upon Nero ; but to say Nero was
a persecutor of Christians, and yet obey him
commanding what is just, are very consis-
tent. 5. " The persons are proposed (Rom.
xiii.) to be the object of our obedience,"
saith Dr Feme. This is very true : but he
is ignorant of our mind in exponing the
word person. We never meant that fear,
honour, royalty, tribute, must be due to the
abstracted accident of kingly authority, and
not to the man who is king ; nor is it our
meaning that royalty, in abstracto, is
crowned king, and is anointed, but that
the person is crowned and anointed. But,
again, by a person, we mean nothing less
than the man Nero wasting Rome, burn-
ing, crucifying Paul, and torturing Chris-
tians ; and that we owe subjection to Nero,
and to his person in concreto, as to God's
ordinance, God's minister, God's sword-
bearer, in that notion of a person, is that
only that we deny. Nay, in that Nero, in
concreto, to us is no power ordained of God,
no minister of God, but a minister of the
devil, and Satan's armour-bearer, and there-
fore we owe not fear, honour, subjection, or
tribute to the person of Nero. But the
person thus far is the object of our obedi-
ence, that fear, honour, subjection and tri-
bute must be due to the man in concreto,
to his person who is prince, but not because
he is a man, or a person simply, or a sword-
bearer of papists, but for his office, — for
that eminent place of royal dignity that
God hath conferred on his person. We
know the light of the sun, the heat of fire,
in abstracto, do not properly give light and
heat, but the sun and fire in concreto ; yet
the jjrincipium quo, ratio qua, the prin-
ciples of these operations in sun and fire be
lioht and heat ; and we ascribe illuminating
of dark bodies, heating of cold bodies, to sun
and fire in concreto, yet not to the subjects
simply, but to them as affected with such
accidents; so here we honour and submit to
THE LAW AND THE PRINCE.
149
the man who is king, not because he is a
man, that were treason ; not because he
useth his sword against the church, that
were impiety ; but because of his royal dig-
nity, and because he useth it for the Lord.
It is true, Arnisseus, Barclay, and Feme,
say, " That kings leave not off to be kings
when they use their power and sword against
the church and religion. And also it is
considerable, that when the worst of em-
perors, bloody Nero, did reign, the apostle
presseth the duty of subjection to him, as
to a power appointed of God, and condemn-
eth the resisting of Nero, as the resisting of
an ordinance of God. And certainly, if
the cause and reason, in point of duty mo-
ral, and of conscience before God remain in
kings, to wit, that while they are enemies
and persecutors, as Nero was, their royal
dignity, given them of God remaineth, then
subjection upon that ground is lawful, and
resistance unlawful." — Ans. It is true, so
long as kings remain kings, subjection is due
to them because kings ; but that is not the
question. The question is, if subjection be
due to them, when they use their power
unlawfully and tyrannically. Whatever Da-
vid did, though he was a king, he did it
not as king ; he deflowered not Bathsheba
as king, and Bathsheba might with bodily
resistance and violence lawfully have re-
sisted king David, though kingly power re-
mained in him, while he should thus attempt
to commit adultery ; else David might have
said to Bathsheba, " Because I am the
Lord's anointed, it is rebellion in thee, a
subject, to oppose any bodily violence to my
act of forcing of thee ; it is unlawful to thee
to cry for help, for if any shall offer vio-
lently to rescue thee from me, he resisteth
the ordinance of God." Subjection is due to
Nero as an emperor, but not any subjection
is due to him in the burning of Borne, and
torturing of Christians, except you say that
Nero's power abused in these acts of cruelty
was, 1. A power from God. 2. An ordi-
dance of God. 3. That in these he was the
minister of God for the good of the com-
monwealth. Because some believed Chris-
tians were free from the yoke of magistracy,
and that the dignity itself was unlawful ;
and because (c. 12) he had set down the
lawful church rulers, and in this and the fol-
lowing chapter, the duties of brotherly love
of one toward another ; so here (c. 13) he
teacheth that all magistrates, suppose hea-
ther., are to be obeved and submitted unto
in all things, so far as they are ministers
of God. ArnisiBus objecteth to Buchanan,
" If we are by this place to subject ourselves
to every power, in abstracto, then also to a
power contrary to the truth, and to a power
of a king exceeding the limits of a king ;
for such a power is a power, and we are not
to distinguish where the law distinguisheth
not."
Ans. 1. — The law clearly distinguisheth
we are to obey parents in the Lord, and if
Nero command idolatry, this is an excessive
power. Are we obliged to obey, because the
law distinguisheth not ? 2. The text saith
we are to obey every power from God that
is God's oidinance, by which the man is a
minister of God for good ; but an unjust
and excessive power is none of these three.
3. The text in words distinguisheth not
obedience active in things wicked and law-
ful, yet we are to distinguish.
Symmons. — Is authority subjected solely
in the king's law, and no whit in his person,
though put upon him both by God and
man ? Or, is authority only the subject,
and the person exercising the authority, a
bare accident to that, being in it only more
separably, as pride and folly are in a man.
Then, if one in authority command out of
his own will, and not by law, — if I neither
actively nor passively obey, I do not so much
as resist abused authority ; and then must
the prince, by his disorderly will, have quite
lost his authority and become like another
man ; and yet his authority has not fled from
him.
Ans. 1. — If we speak accurately, neither
the man solely, nor his power only, is re-
sisted ; but the man clothed with lawful ha-
bitual power, is resisted in such and such
acts flowing from an abused power. 2. It
is an ignorant speech to ask, Is authority
subjected solely in the king's law, and no
whit in his person, for the authority hath
all its power by law, not from the man's
person ? The authority hath nothing from
the person but a naked inheritance in the
person, as in the subject ; and the person is
to be honoured for the authority, not the
authority for the person. 3. Authority is
not so separable from the person, as that for
every act of lawless will the king loseth
his royal authority and ceaseth to be king.
No, but every act of a king, in so far, can
claim subjection of the interior, as the act
of commanding and ruling hath law tor it ;
and in so far as it is lawless, the person in
150
LEX, REX ; OR,
that act repugnant to law loseth all due
claim of actual subjection in that act, and in
that act power actual is lost, as is clear,
Acts iv. 19 ; v. 29. The apostles say to
rulers, It is safer to obey God than man.
What ! Were not these rulers lawful ma-
gistrates armed with power from God ? I
answer, habitually they were rulers and more
than men, and to obey them in things law-
ful is to obey God. But, actually, in these
unlawful commandments, especially being
commanded to speak no more in the name
of Jesus, the apostles do acknowledge them
to be no more but men ; and so their actual
authority is as separable from the person, as
pride and folly from men.
Symmons. — The distinction holdeth good
of inferior magistrates, that they may be
considered as magistrates and as men, be-
cause their authority is only sacred, and
addeth veneration to their persons, and is
separable from the person. The man may
live when his authority is extinguished, but
it holdeth not in kings. King Saul's per-
son is venerable as his authority, and his
authority cometh by inheritance, and dieth,
and liveth, inseparably with his person ; and
authority and person add honour, each one
to another.
Ans. 1. — If this be true, Manasseh, a
king, did not shed innocent blood and use
sorcery. He did not these great wicked-
nesses as a man, but as a king. Solomon
played the apostate as a king, not as a man,
if so, the man must make the king more in-
fallible than the Pope ; for the Pope, as a
man, can err ; — as a pope he cannot err, say
papists. But prophets, in their persons,
were anointed of God as Saul and David
were, then must we say, Nathan and Sa-
muel erred not as men, because their per-
sons were sacred and anointed, and sure
they erred not as prophets, therefore they
erred not all. A king, as a king, is an holy
ordinance of God, and so cannot do injus-
tice, therefore they must do acts of justice
as men. 1. The inferior judge is a power
from God. 2. To resist him is to resist
an ordinance of God. 3. He is not a ter-
ror to good works, but to evil. 4. He is a
minister of God for good. 5. He is God's
sword-bearer. His official power to rule
may by as good right come by birth as the
crown ; and the king's person is sacred only
for his office, and is anointed only for his
office. For then the Chaldeans dishonoured
not inferior judges (Lam. v. 12,) when they
" hanged the prince, and honoured not the
faces of elders." It is in question, if the
king's actual authority be not as separable
from him, as the actual authority of the
judge.
Symmons (p. 24). — The king himself may
use this distinction. As a Christian he may
forgive any that offendeth against his per-
son, but as a judge, he must punish, in re-
gard of his office.
Ans. — Well, then, flatterers will grant
the distinction, when the king doth good
and pardoneth the blood of protestants, shed
by bloody rebels ; but when the king doth
acts of injustice, he is neither man nor king,
but some independent absolute god.
Symmons (p. 27). — God's word tyeth me
to every one of his personal commandments,
as well as his legal commandments. Nor do
I obey the king's law, because it is esta-
blished, or because of its known penalty,
nor yet the king himself, because he ruleth
according to law, but I obey the king's law,
because I obey the king ; and I obey the
king, because I obey God ; I obey the king
and his law, because I obey God and his
law. Better obey the command for a re-
verent regard to the prince than for a pen-
alty.
Ans. — It is hard to answer a sick man.
It is blasphemy to seek this distinction of
person and office in the King of kings, be-
cause by person in a mortal lung, we under-
stand a man that can sin. 1. I am not
obliged to obey his personal commandment,
except I were his domestic ; nor his unlaw-
ful personal commandments, because they
are sinful. 2. It is false that you obey the
king's law, because you obey the king ; for
then you say but this, I obey the king be-
cause I obey the king. The truth is, obe-
dience is not formally terminated on the
person of the king. Obedience is relative
to a precept, and it is men-service to obey a
law, not because it is good and just, but upon
this formal motive, because it is the will of
a mortal man to command it. And reve-
rence, love, fear, being acts of the affection,
are not terminated on a law, but properly on
the person of the judge ; and they are modi-
fications, or laudable qualifications of acts of
obedience, not motives, not the formal reason
why I obey, but the manner how I obey.
And the apostle maketh expressly (Rom.
xiii. 4) fear of punishment a motive of obe-
dience, while he saith, " He beareth not
the sword in vain," therefore be subject to
THE LAW AND THE PRINCE.
151
the king ; and this hindereth not personal
resistance to unjust commandments.
Symmons (p. 27 — 29). — " You say, ' To
obey the prince's personal commandment
against his legal will, is to obey himself
against himself.' So say I, ' To obey his
legal will against his personal will, is to
obey himself against himself, for I take his
person to be himself.' "
Ans. — 1. To obey the king's personal will,
when it is sinful, (as we now suppose,) against
his legal will, is a sin, and a disobedience to
God and the king also, seeing the law is the
king's will as king ; but to obey his legal
will, against his sinful personal will, (as it
must be sinful if contrary to a just law,) is
obedience to the king as king, and so obe-
dience to God. 2. You take the king's
person to be himself, but you take quid pro
quo ; for his person here you must not take
physically, for his suppost of soul and body,
but morally : it is the king, as a sinful man
doing his worst will against the law, which
is his just and best will, and the rule of the
subjects. And the king's personal will is so
far just, and to regulate the subjects, in so
far as it agreeth with his legal will or his
law, and this will can sin, and therefore may
be crossed without breach of the fifth com-
mandment ; but his legal will cannot be
crossed without disobedience both to God
and the king.
Symmons (p. 28). — The king's personal
will doth not always presuppose passion ;
and if it be attended with passion, yet we
must bear it for conscience sake. — Ans. We
are to obey the king's personal will, when
the thing commanded is not sin ; but his
subjects, as subjects, have little to do with
his personal will in that notion. It con-
cerneth his domestic servant, and is the
king's will as he is the master of servants,
not as he is king in relation to subjects ;
but we speak of the king's personal will as
repugnant to law, and contrary to the king's
will as king, and so contrary to the filth
commandment; and this is attended often
not only with passion, but also with pre-
judice ; and we owe no subjection to pre-
judice and passions, or to actions commanded
by these disordered powers, because they
are not from God, nor his ordinances, but
from men and the flesh, and we owe no
subjection to the flesh.
Dr Feme (sect. 9, p. 58). — The distinc-
tion of personal and legal will hath place in
evil actions, but not in resistance, where we
cannot sever the person and the dignity,
or authority, because we cannot resist the
power but we must resist the person who
hath the power. Saul had lawfully the
command of arms, but that power he useth
unjustly, against innocent David. I ask,
When these emperors took away lives and
goods at their pleasure, was that a power
ordained of God ? No, but an illegal will,
a tyranny — but they might not resist ; nay,
but they cannot resist ; for that power and
sovereignty employed to compass these il-
legal commandments was ordained and
settled in them. When Pilate condemned
our Saviour, it was an illegal will, yet our
Saviour acknowledged in it, that Pilate's
power was given him from above.
Ans. — 1. Here we have the distinction
denied by royalists, granted by Dr Feme.
But if, when the king commands us to do
wickedness, we may resist that personal will,
and when he commandeth us to suffer un-
justly we cannot resist his will but we must
resist also his royal person ; what ! is it
not still the king, and his person sacred, as
his power is sacred, when he commandeth
the subjects to do unjustly, as when he com-
mandeth them to suffer unjustly ? It were
fearful to say, when kings command any
one act of idolatry, they are no longer kings.
If, for conscience, I am to suffer unjustly,
when Nero commandeth unjust punishment,
because Nero commanding so, remaineth
God's minister, why, but when Nero com-
mandeth me to worship an heathen god,
I am upon the same ground to obey that
unjust will in doing ill ; for Nero, in com-
manding idolatry, remaineth the Lord's
minister, his person is sacred in the one com-
mandment of doing ill, as in inflicting ill of
punishment. And do I not resist his per-
son in the one as in the other ? His power
and his person are as inseparably conjoined
by God in the one as in the other. 2. In
bodily thrusting out of Uzziah from the
temple, these fourscore valiant men did re-
sist the king's person by bodily violence, as
well as his power. 3. If the power of killing
the martyrs in Nero was no power ordained
of God, then the resisting of Nero, in his
taking away the lives of the martyrs, was
but the resisting of tyranny ; and certain-
ly, if that power in Nero was riray/iiyr, a
power ordained of God, and not to be re-
sisted, as the place (Pom. xiii.) is alleged
by royalists, then it must be a lawful power,
and no tyranny ; and if it cannot be re-
152
LEX, REX ; OK,
sisted, because it was a power ordained and
settled in him, it is either settled by God,
and so not tyranny, (except God be the
author of tyranny,) or then settled by the
devil, and so may well be resisted. But the
text speaketh of no power but of that which
is of God. 4. We are not to be subject to
all powers in concreto, by the text ; for we
are not to be subject to powers lawful, yet
commanding active obedience to things un-
lawful. Now subjection includeth active
obedience of honour, love, fear, paying tri-
bute, and therefore of need force, some
powers must be excepted. 5. Pilate's
power is merely a power by divine permis-
sion, not a power ordained of God, as are
the powers spoken of, Rom. xiii. Gregorius
(mor. 1. 3, c. 11) expressly saith, — " This
was Satan's power given to Pilate against
Christ. Manibus Satance pro nostra re-
demptione se tradidit." Lyra, " A prin-
cipibus Romanorum et ulterius permissum
a deo, qui est potestas, superior." Calvin,
Beza and Diodatus, saith the same ; and
that he cannot mean of legal power from
God's regulating will is evident, 1. Because
Christ is answering Pilate, (John xix. 10,)
" Knowest though not that I have power
to crucify thee?" This was an untruth.
Pilate had a command to worship him, and
believe in him ; and whereas Feme saith,
(sect. 9, p. 59,) " Pilate had power to
judge any accused before him ;" it is true ;
but he being obliged to beheve in Christ,
he was obliged to believe in Christ's inno-
cency, and so neither to judge nor receive
accusation against him ; and the power he
saith he had to crucify, was a law-power in
Pilate's meaning, but not in very deed any
law power ; because a law-power is from
God's regulating will in the fifth command-
ment, but no creature hath a lawful or a
law-power to crucify Christ. 2. A law-
power is for good, (Rom. xiii. 4,) a power
to crucify Christ is for ill. 3. A law-power
is a terror to ill works, and a praise to good :
Pilate's power to crucify Christ was the con-
trary. 4. A law-power is to execute wrath
on ill-doing, a power to crucify Christ is no
such. 5. A law-power conciliateth honour,
fear, and veneration, to the person of the
judge, a power to crucify Christ conciliateth
no such thing, but a disgrace to Pilate. 6.
The genuine acts of a lawful power are law-
ful acts ; for such as is the fountain-power,
such are the acts flowing therefrom. Good
acts flow not from bad powers, neither hath
God given a power to sin, except by way of
permission.
QUESTION XXX.
WHETHER OR NO PASSIVE OBEDIENCE BE A
MEAN TO WHICH WE ARE SUBJECTED IN
CONSCIENCE, BY VIRTUE OF A DIVINE COM-
MANDMENT ; AND WHAT A MEAN RESIST-
ANCE IS. THAT FLYING IS RESISTANCE.
Much is built, to commend patient suf-
fering of ill, and to condemn all resistance of
superiors, by royalists, on the place, 1 Pet.
ii. 18, where we are commanded, being ser-
vants, to suffer buffets not only for ill-doing
of good masters, but also undeservedly ; and
when we do well, we are to suffer of those
masters that are evil; and so much more
are we patiently without resistance to suffer
of kings. But it is clear, the place is no-
thing against resistance, as in these assertions
I clear : —
Assert. 1. — Patient suffering of wicked
men, and violent resisting are not incom-
patible, but they may well stand together ;
so this consequence is the basis of the argu-
ment, and it is just nothing : to wit, ser-
vants are to suffer unjustly wounds and
buffeting of their wicked masters, and they
are to bear it patiently ; therefore, servants
are in conscience obliged to non-resistance.
Now, Scripture maketh this clear, — 1. The
church of God is to bear with all patience
the indignation of the Lord, because she
hath sinned, and to suffer of wicked enemies
which were to be trodden as mire in the
streets (Micah vii. 9 — 12) ; but withal,
they were not obliged to non-resistance and
not to fight against these enemies, yea, they
were obliged to fight against them also. If
these were Babylon, Judah might have re-
sisted and fought if God had not given a
special commandment of a positive law, that
they should not fight; if these were the
Assyrians and other enemies, or rather
both, the people were to resist by fighting,
and yet to endure patiently the indignation
of the Lord. David did bear most patiently
the wrong that his own son Absalom, and
Ahitophel, and the people inflicted on him,
in pursuing him to take his life and the
kingdom from him, as is clear by his gra-
cious expressions (2 Sam. xv. 25, 26 ; xvi.
10—12; Psal. iii. 1 — 3); yea, he prayeth
THE LAW AM) THE PRINCE.
153
far ;i blessing on the people that conspired
against him (Psal. iii. 8) ; yet did he law-
fully resist Absalom and the conspirators,
and sent out Joab and a huge army in open
battle against them, (2 Sam. xviii. 1—4,
&c.,) and fought against them. And were
not the people of God patient to endure the
violence done to them in the wilderness
by Og, king of Bashan ; Sihon, king of
Heshbon ; by the Amorites, Moabites, &c. ?
I think God's law tyeth all men, especially
his people, to as patient a suffering in wars.
(Deut. viii. 16.) God then trying and hum-
bling his people, as the servant is to endure
patiently, unjustly inflicted buffets (1 Pet.
ii. 18) ; and yet God's people at God's com-
mand did resist these kings and people, and
did fight and kill them, and possess their
land, as the history is clear. See the like
Josh. xi. 18, 19. 2. One act of grace and
virtue is not contrary to another ; resistance
is in the children of God an innocent act of
self-preservation, as is patient suffering, and
therefore they may well subsist in one.
And so saith Amasa by the Spirit of the
Lord, 1 Chron. xii. 18, " Peace, peace be
unto thee, and peace to thy helpers, for
God helpeth thee." Now, in that, David
and all his helpers were resisters of king
Saul. 3. The scope of the place (1 Pet. ii.)
is not to forbid all violent resisting, as is
clear he speaketh nothing of violent resisting
either one way or other, but only he for-
biddeth revengeful resisting of repaying one
wrong with another, from the example of
Christ, who, " when he was reviled, reviled
not again ; when he suffered, he threatened
not ;" therefore, the argument is a falacy,
ab eo quod docitur xara r), ad illud quod
dicitur a.wXus- Though therefore the mas-
ter should attempt to kill an innocent ser-
vant, and invade him with a weapon of
death suddenly, without all reason or cause,
or unavoidably, Dr Feme, (p. 3, sect. 2, p.
10,) in that case, doth free a subject from
guiltiness if he violently resist his prince ;
therefore, the servant who should violently
resist his master in the aforesaid case should,
and might patiently suffer and violently re-
sist, notwithstanding anything that royalists
can conclude on the contrary. 4. No prince
hath a masterly or lordly dominion over his
subjects, but only a free, ingenuous, paternal
and tutorly oversight for the good of the
people. (Rom. xiii. 4.) The master, espe-
cially in the apostle Peter's time, had a domi-
nion over servants as over their proper goods.
Assert. 2. — Neither suffering formally as
suffering, and so neither can non-resisting
passive fall under any moral law of God,
except in two conditions : 1. In the point
of Christ's passive obedience, he being the
eternal God as well as man, and so lord of
his own blood and life, by virtue of a special
commandment imposed on him by his Fa-
ther, was commanded to lay down his life,
yea, and to be an agent as well as a patient
in dying (Job. x. 18) ; yea, and actively he
was to contribute something for his own
death, and offer himself willingly to death
(Matt, xxviii. 20) ; and, knowing the hour
that he was to depart out of this world unto
the Father, (John xiii. 1,) would not only
not fly — which is to royalists lawful, to us a
special point of resistance (John xiv. 31 ;
xviii. 4—7) — but upbraided Peter as the
agent of Satan, who would dissuade him to
die, (Matt. xvi. 22, 23,) and would fight for
him. And he doth not fetch any argument
against Peter's drawing of his sword from
the unlawfulness of self-defence and innocent
resistance, (which he should have done if
royalists plead with any colour of reason
from his example, against the lawfulness of
resistance and self-defence,) but from the
absolute power of God. 2. From God's
positive will, who commanded him to die.
(Matt. xxvi. 53, 54.) If therefore royalists
prove anything against the lawfulness of re-
sisting kings, when they offer (most unjust-
ly) violence to the life of God's servants,
from this one merely extraordinary and
rare example of Christ, the like whereof was
never in the world, they may, from the
same example, prove it unlawiul to fly, for
Christ would not fly. (Psal. xl. 6, 7 ; Heb.
x. 6—9; John xiv. 31; xviii. 4—7.) 1.
They may prove that people sought by a ty-
rant to be crucified for the cause of God, are
to reveal and discover themselves to an army
of men who come to seek them. (John xiii.
1, 2; xviii. 4 — 7)- 2. That martyrs are of
purpose to go to the place where they know
they shall be apprehended and put to death,
for this Christ did, and are willingly to offer
themselves to the enemy's army, for so did
Christ (John xiv. 3; Mark xiv. 41, 42;
Matt. xxvi. 46, 47) ; and so by his example,
all the parliament, all the innocents of the
city of London, and assembly of divines, are
obliged to lay down arms and to go to their
own death to prince Rupert, and the bloody
Irish rebels. 3. By this example it is un-
lawful to resist the cut-throats of a kincr for
154
LEX, REX ; OR,
in his own royal person — the high
priest in person, came not out against Christ ;
yea, it is not lawful for the parliament to
resist a Judas, who hath fled as a traitorous
apostate from the truth and the temple of
Christ. 4. It is not lawful for innocents to
defend themselves by any violence against
the invasion of superiors, in Dr Feme's
three cases in which he alloweth resistance :
(1.) When the invasion is sudden. (2.) Un-
avoidable. (3.) Without all colour of law
and reason. In the two last cases, royahsts
defend the lawfulness of self-defence. 5.
If the example be pressed, — Christ did not
this and that, he resisted not with violence,
to save his own life, therefore, we are to
abstain from resistance and such and such
means of self-preservation ; then, because
Christ appealed not from inferior judges to
the emperor Caesar ; who, no doubt, would
have shown him more favour than the scribes
and pharisees did, and because Christ con-
veyed not a humble supplication to his sove-
reign and father Caesar, — then because he
proffered not a humble petition to prince
Pilate for his life, he being an innocent man,
and his cause just, — because he neither pro-
cured an orator to plead his own just cause,
nor did he so plead for himself, and give
in word and writ, all lawful and possible de-
fences for his own safety, but answered
many things with silence, to the admiration
of the judge, (Mark xv. 3 — 5,) and was
thrice pronounced by the judge to be inno-
cent (Luke xxii. 23) ; because, I say, Christ
did not all these for his own life, therefore
it is unlawful for Scotland and England to
appeal to the king, to supplicate, to give in
apologies, &c. I think royalists dare not say
so. But if they say he would not resist,
and yet might have done all these lawfully,
because these be lawful means, and resis-
tance with the sword unlawful, — because
" He that taketh the sword, shall perish by
the sword," — let me answer then, 1. They
leave the argument from Christ's example,
who was thus far subject to higher powers,
that he would not resist, and plead from the
unlawfulness of resistance; this is petitio
principii. 2. He that taketh the sword
without God's warrant, which Peter had not,
but the contrary, he was himself a Satan to
Christ, who would but counsel him not to
die ; but there is no shadow of a word to
prove that violent resisting is unlawful, when
the king and his Irish cut-throats pursue us
unjustly ; only Christ saith, when God may
deliver extraordinarily by his angels, except
it be his absolute will that his Son should
drink the cup of death, then to take the
sword, when God hath declared his will on
the contrary, is unlawful; and that is all;
though I do not question but Christ's ask-
ing tor swords, and his arresting all his
enemies to the ground (John xviii. 6) back-
ward, is a justifying of self-defence. But
hitherto it is clear, by Christ's example, that
he only was commanded to suffer. Now the
second case in which suffering falleth under
a commandment, is indirectly and compa-
ratively, when it cometh to the election of
the witness of Jesus, that it is referred to
them, either to deny the truth of Christ
and his name, or then to suffer death. The
choice is apparently evident; and this choice
that persecutors refer us unto, is to us a
commandment of God, that we must choose
suffering for Christ, and refuse sinning
against Christ. But the supposition must
stand, that this alternative is unavoidable,
that is not in our power to decline either suf-
fering for Christ, or denying of Christ before
men ; otherwise no man is to expect the
reward of a witness of Jesus, who having
a lawful possible means of eschewing suffer-
ing, doth yet cast himself into suffering
needlessly. But I prove that suffering by
men of this world falleth not formally and
directly under any divine positive law ; for
the law of nature, — whatever Arminians in
their declaration, or this Arminian excom-
municate think with them, (for they teach
that God gave a commandment to Adam,
to abstain from such and such fruit, with
pain and trouble to sinless nature,) — doth
not command suffering, or anything con-
trary to nature, as nature is sinless : I prove
it thus : —
1. Whatever falleth under a positive com-
mandment of God, I may say here, under
any commandment of God, is not a thing
under the free will and power of others,
from whom we are not descended necessarily
by natural generation, but that men of the
world kill me, even these from whom I am
not descended by natural generation (which
I speak to exclude Adam, who killed all his
posterity) is not in my free will, either as if
they had my common nature in that act, or
as if I were accessory by counsel, consent, or
approbation to that act, for this is under the
free will and power of others, not under my
own free will; therefore, that I suffer by
others is not under my free will, and cannot
THE LAW AND THE PRINCE.
155
fall under a commandment of God ; and cer-
tainly it is an irrational law (glorified be his
name) that God should command Antipas
either formally to suffer, or formally not to
suffer death by these of the synagogue of
Satan, (Rev. ii. 13,) because if they be
pleased not to kill him, it is not in his free
will to be killed by them ; and if they shall
have him in their power (except God extra-
ordinarily deliver) it is not in his power, in
an ordinary providence, not to be killed.
2. All these places of God's word, that
recommendeth suffering to the followei'S of
Christ, do not command formally that we
suffer ; therefore, suffering falleth not for-
mally under any commandment of God. I
prove the antecedent, because if they be con-
sidered, they prove only that comparatively
we are to choose rather to suffer than to
deny Christ before men, (Mat. x. 28, 32 ;
Rev. ii. 13 ; Mat. x. 37 ; xvi. 24 ; xix. 29,)
or then they command not suffering accord-
ing to the substance of the passion, but ac-
cording to the manner that we suffer, will-
ingly, cheerfully, and patiently. Hence
Christ's word to take up his cross, which is
not a mere passion, but commendeth an act
of the virtue of patience. Now no Christian
virtue consisteth in a mere passion, but in
laudable habits, and good and gracious acts,
and the text we are now on (1 Pet. ii. 18,
19) doth not recommend suffering from the
example of Christ, but patient suffering; and
so the woi-d inrorairiroftsvou, not simply enjoined,
but U **vr) rZ p»C» in all fear, (ver. 18,) and
the words imtpi^M and i*ofiin~», to suffer with
patience, as 2 Tim. hi. 11; 1 Cor. x. 13,
and bxtfivuv, is to suffer patiently, 1 Cor.
xiii. 7, love natr* vreftim suffereth all
things ; Heb. xii. 17, if you suffer correc-
tion ; 1 Tim. v. 5, she continueth pa-
tiently in prayers ; Heb. xii. 2, Christ en-
dureth the cross patiently (Rom. xv. 5 ;
viii. 25; Luke viii. 15; xxi. 29). The deriva-
tions hence signify patience ; so do all our in-
terpreters, Reza, Calvin, Marloratus, and
popish expositors, as Lorinus, Estius, Carthu-
sian, Lyra, Hugo Cardinalis, expound it of
patient suffering; and the text is clear, it is
suffering like Christ, without rendering evil
for evil, and reviling for reviling.
3. Suffering simply, according to substance
of the passion, (I cannot say action,) is com-
mon to good and ill, and to the wicked, yea
to the damned in hell, who suffer against
their will, and that cannot be joined accord-
ing to its substance as an act of formal obedi-
ence and subjection to higher powers, kings,
fathers, masters, by force of the fifth com-
mandment, and of the place, Rom. xiii. 1, 2.
Which, according to its substance, wicked
men suffer, and the damned in hell also
against their will.
4. Passive obedience to wicked emperors
can but be enjoined (Rom. xiii.) but only in
the manner, and upon supposition, that we
must be subject to them, and must suffer
against our wills all the ill of punishment
that they can inflict ; we must suffer pa-
tiently, and because it is God's permissive
will that they punish us unjustly ; for it is
not God's ruling and approving will (called
voluntas signi) that they should, against the
law of God and man, kill us, and persecute
us ; and therefore neither Rom. xiii., nor 1
Pet. ii., nor any other place in God's word,
any common divine, natural, national or
any municipal law, commandeth formally
obedience passive, or subjection passive, or
non-resistance under the notion of passive
obedience ; yea, to me, obedience passive (if
we speak of obedience, properly called, as re-
lative essentially to a law) is a chimera, a
dream, and repugnantia in adjecto ; and
therefore I utterly deny that resistance pas-
sive, or subjection passive, doth formally fall
under either commandment of God affirma-
tive or negative ; only the unlawful manner
of resistance by way of revenge, or for de-
fence of popery and false religion, and out of
impatient toleration of monarchy or any ty-
ranny, is forbidden in God's word ; and cer-
tainly all the words used Rom. xiii., as they
fall under a formal commandment of God, are
words of action, not of any chimerical pas-
sive obedience, as we are not to resist active-
ly God's ordinance, as his ordinance, (ver.
1, 2,) that is, to resist God actively. We
are to do good works, not evil, if we would
have the ruler no terror to us (ver. 3). We
must not do ill if we would be free of venge-
ance's sword (ver. 7) ; we are to pay tribute
and to give fear and honour to the ruler, all
which are evidently actions, not passive sub-
jection ; and if any passive subjection be com-
manded, it is not here, nor in the first com-
mandment, commanded, but in the first
commandment under the hand of patience
and submission under God's hand in suffer-
ings, or in the third commandment under
the hand of rather dying for Christ than de-
nying his truth before men. Hence I argue
here (Rom. xiii. ; 1 Pet. ii. ; Tit. iii.) is
nothing else but an exposition of the fifth
156
LEX, REX ; OR,
commandment ; but in the fifth command-
ment only active obedience is formally com-
manded, and the subordination of inferiors
to superiors is ordained, and passive obe-
dience is nowhere commanded, but only
modus rei, the manner of suffering, and the
occasion of the commandment, here it is
thought that the Jews converted under this
pretext, that they were God's people, be-
lieved that they should not be subject to the
Romans. A certain Galilean made the
Galileans believe that they should not pay
tribute to strangers, and that they should
call none lord, but the God of heaven ; as
Josephus saith, (Antiq. Judaic. 1. 20, c. 2,
and dc bell. Judaic. 1 7, c. 29,) yea and
Hieron. (Com. in Tit.,) saith, At this time
the sect of the Galileans were on foot. It is
like the Jews were thought to be Galileans,
and that their liberty, purchased in Christ,
could not consist with the order of master
and servant, king and subject. And to re-
move this, Paul established magistracy, and
commandeth obedience in the Lord ; and he
is more to prove the office of the magistrate
to be of God than any other thing, and to
show what is his due, than to establish abso-
luteness in Nero to be of God ; yea, to me,
every word in the text speaketh limitedness
of princes, and crieth down absoluteness : —
(1.) No power of God, (2.) no ordinance of
God, who is a terror to evil, but a praise
to good works, (3.) no minister of God for
good, &c. can be a power to which we sub-
mit ourselves on earth, as next unto God,
without controlmerit. That passive obedi-
ence falleth formally under no command-
ment of God, I prove thus : All obedience
liable to a divine commandment, doth com-
mend morally the performer of obedience,
as having a will conformed to God's moral
law, and deformity betwixt the will of him
who performeth not obedience, involveth the
non-obedient in wrath and guiltiness. But
non-passive subjection to the sword of the
judge doth not morally commend him that
suffereth not punishment; for no man is for-
mally a sinner against a moral law because
he suffereth not the ill of punishment, nor
is he morally good, or to be commended,
because he suffereth ill of punishment, but
because he doth the ill of sin. And all evil
of punishment unjustly inflicted hath God's
voluntas beneplaciti, the instrumental and
hidden decree of God, which ordereth both
good and ill, (Ephes. i. 11,) for its rule and
cause, and hath not God's will or approba-
tion called, voluntas signi, for its rule, both
is contrary to that will. I am sure Epipha-
nius, (1. 1, torn. 3, heres. 40,) Basihus (in
Psal. xxxii.), Nazianzen Orat. (ad subd. et
imperat^), Hilar, (li. ad Constant.), and Au-
gustine, all citeth these words, and saith the
same. If, then, passive subjection be not
commanded, non-subjection passive cannot
be forbidden, and this text, Kom. xiii., and
1 Pet. ii. cannot a whit help the bad cause
of royalists. All then must be reduced to
some action of resisting ; arguments for pas-
sive subjection, though there were shipfulsof
them, they cannot help us.
Assert. 3. — By the place, 1 Pet. ii., the
servant unjustly buffeted is not to buffet
his master again, but to bear patiently as
Christ did, who, when he was reviled, did
not revile again. Not because the place
condemneth resistance for self-defence, but
because buffeting again is formally re-of-
fending— not defending : defending is pro-
perly a warding off a blow or stroke. If my
neighbour come to kill me, and I can by no
means save my life by flight, I may defend
myself; and all divines say I may rather
kill ere I be killed, because I am nearer, by
the law of nature, and dearer to myself and
my own life than to my brother ; — but if I
kill him, out of malice or hatred, the act of
defending, by the unlawful manner of doing,
becometh an act of offending and murder ;
whence the mind of the blood-shedder will
vary the nature of the action from whence
this corollary doth naturally issue, that the
physical action of taking away the life mak-
eth not murder nor homicide, and so the
physical action of offending my neighbour is
not murder. 1. Abraham may kill his son,
— he for whom the cities of refiige were or-
dained, and did kill his brother, yet, not '
hating him, he was not, by God's law,
judged a murderer; and, 2. It necessarily
hence followeth, that an act which is physi-
cally an act of offending my brother, yea
even to the taking away of his life, is often
morally and legally an act of lawful self-
defence : an offending of another, necessi-
tated from the sole invention of self-defence,
is no more but an act of innocent self-defence.
If David, with his men, had killed any of
Saul's men in a set battle, David and his
men only intending self-defence, the war on
David's part was mere defensive ; for physi-
cal actions of killing, indifferent of them-
selves, yet imperated by a principle of natu-
ral self-defence, and clothed with this formal
THE LAW AND THE PRINCE.
157
end of self-defence, or according to the sub-
stance of the action, the act is of self-defence.
If, therefore, one shall wound me deadly,
and I know it is my death, after that, to
kill the killer of myself, I being only a
private man, must be no act of self-defence,
but of homicide ; because it cannot be impe-
rated by a sinless dictate of a natural con-
science, for this end of self-defence, after I
know I am killed. Any mean not used for
preventing death must be an act of revenge,
not of self-defence, for it is physically un-
suitable for the intended end of self-defence.
And so, for a servant buffeted to buffet
ao-ain, is of the same nature, — the second
buffet not being a conducible mean to ward
the first buffet, but a mean to procure hea-
vier strokes, and, possibly, killing, it cannot
be an act of self-defence ; for an act of self-
defence must be an act destinated ex natura
rei, only for defence ; and if it be known to
be an act of sole offending, without any
known necessary relation of a mean to self-
defence as the end, it cannot be properly an
act of self-defence.
Assert. 4. — When the matter is lighter,
as in paying tribute, or suffering a buffet of
a rough master, though unjustly, we are not
to use any act of re-offending. For, though
I be not absolute lord of my own goods, and
so may not at my sole pleasure give tribute
and expend monies to the hurting of my
children, where I am not, by God's law or
man's law, obliged to pay tribute ; and
though I be not an absolute lord of my
members, to expose face, and cheeks, and
back, to stripes and whips at my own mere
will, yet have we a comparative dominion
given to us of God in matters of goods, and
disposing of our members, (I think I may
except the case of mutilation, which is a
little death,) for buffets, because Christ, no
doubt to teach us the like, would rather give
of his goods, and pay tribute where it was not
due, than that this scandal be in the way of
Christ, that Christ was no loyal subject to
lawful emperors and kings. And (1 Cor. ix.)
Paul would rather not take stipend, though
it was due to him, than hinder the course of
the gospel. And the like is 1 Cor. vi., where
the Corinthians were rather to suffer loss in
their goods than to go to law before infidel
judges, and by the hke to prevent greater
inconveniences, and mutilation, and death.
The Christian servant hath that dominion
over his members, rather to suffer buffets
than to ward off buffets with violent resis-
tance. But it is no consequence, that inno-
cent subjects should suffer death of tyrants,
and servants be killed by masters, and yet
that they shall not be allowed, by the law of
nature, to defend themselves, by re-offending,
when only self-defence is intended, because
we have not that dominion over life and
death. And therefore, as a man is his bro-
ther's murderer, who, with fro ward Cain,
will not be his brother's keeper, and may
preserve his brother's life, without loss of
his own life, when his brother is unjustly
preserved ; so, when he may preserve his
own life, and doth not that which nature's
law alloweth him to do, (rather to kill ere
he be killed,) he is guilty of self-murder,
because he is deficient in the duty of lawful
self-defence. But I grant, to offend or kill
is not of the nature of defensive war, but
accidental thereunto ; and yet killing of cut-
throats, sent forth by the illegal command-
ment of the king, may be intended as a
mean, and a lawful mean, of self-defence.
Of two ills of punishment, we have a com-
parative dominion over ourselves, — a man
may cast his goods into the sea to redeem
his life ; so, tor to redeem peace, we may
suffer buffets, but because death is the great-
est ill of punishment, God hath not made
it eligible to us when lawful self-defence is
at hand. But, in defending our own life
against tyrannical power, though we do it
by offending and killing, we resist no ordi-
nance of God, only I judge killing of the
king in self-defence not lawful, because self-
defence must be national on just causes.
Let here the reader judge Barclay, (1. 3,
c. 8, p. 159, con. Monar.) " If the king
(saith he) shall vex the commonwealth, or
one part thereof, with great and intolerable
cruelty, what shall the people do? They
have (saith he) in that case a power to resist
and defend themselves from injury; but only
to defend themselves, nor to invade the
prince, nor to resist the injury, or to recede
from reverence due to the prince."1
I answer, 1. Let Barclay or the Prelate,
(if he may carry Barclay's books) or any,
difference these two, — the people may resist
a tyrant, but they may not resist the inju-
ries inflicted by a tyrant's officers and cut-
throats. I cannot hna:>ine how to conciliate
1 Populo quidem hoc casu resitendi ac tuendi se ab
injuria potestas competit. sed tuendi setantum,non
autem principem invadendi, et resistendi injuria il-
latee, non reeedendi a debita reverentia — non vim
praeteritam ulciscendi jus liabet.
158
LEX, REX ; OR,
these two ; for to resist the cruelty of a kinor
is but to hold off the injury by resistance.
2. If this Nero waste the commonwealth
insufferably with his cruelty, and remain a
lawful king, to be honoured as a king, who
may resist him, according to the royalists'
way ? But, from Rom. xiii., they resist the
ordinance of God. Resisting is not a mere
suffering, nor is it a moral resisting by al-
leging laws to be broken by him. We had
never a question with royalists about such
resisting. Nor is this resisting non-obe-
dience to unjust commandments ; that re-
sisting was never yet in question by any
except the papists, who in good earnest, by
consequent, say, It is better to obey men
than God. 3. It is then resisting by bodily
violence. But if the king have such an ab-
solute power given him by God, as royalists
fancy, from Rom. xiii. 1,2; 1 Sam. viii. 9 —
11, I know not how subjects have any power
given them of God to resist the power from
God, and God's ordinance. And if this re-
sisting extend not itself to defensive wars,
how snail the people defend themselves from
injuries, and the greatest injuries imagina-
ble,— from an army of cut-throats and idola-
ters, in war coming to destroy religion, set
up idolatry, and root out the name of God's
people, and lay waste the mountain of the
Lord's house ? And if they may defend
themselves by defensive wars, how can wars
be without offending ? 4. The law of nature
teacheth to repel violence with violence,
when one man is oppressed, no less than
when the commonwealth is oppressed. Bar-
clay should have given either Scripture or
the law of nature for his warrant here. 5.
Let us suppose a king can be perjured, how
are the estates of the kingdom, who are his
subjects, by Barclay's way, not to challenge
such a tyrant of his perjury ? He did swear
he should be meek and clement, and he is
now become a furious lion. Shall the flock
of God be committed to the keeping of a
furious lion ?
Dr Feme (p. 3, sect. 2, p. 9,) addeth,
" Personal defence is lawful against sudden
and illegal invasion, such as Elisha practised,
even if it were against the prince, to ward
blows, and to hold the prince's hand, but
not to return blows ; but general resistance
by arms cannot be without many unjust
violences, and doth immediately strike at
the order, which is the life of the common-
wealth.
Ans. — 1. If it be natural to one man to
defend himself against the personal invasion
of a prince, then is it natural and warrant-
able to ten thousand, and to a whole king-
dom ; and what reason to defraud a kingdom
of the benefit of self-defence more than one
man ? 2. Neither grace nor policy destroy-
eth nature ; and how shall ten or twenty
thousand be defended against cannons and
muskets, that killeth afar off, except they
keep towns against the king, (which Dr
Feme and others say had been treason in
David, if he had kept Keilah against king
Saul,) except they be armed to offend, with
weapons of the like nature to kill rather
than be killed, as the law of nature teacheth.
3. To hold the hands of the prince is no less
resisting violence than to cut the skirt of his
garment, which royalists think unlawful, and
is an opposing of external force to the king's
person. 4. It is true, wars merely defensive
cannot be but they must be offensive ; but
they are offensive by accident, and intended
for mere defence, and they cannot be with-
out wars sinfully offensive, nor can any wars
be in rerum natura now, (I except the wars
commanded by God, who only must have
been sinful in the manner of doing,) but
some innocent must be killed ; but wars
cannot for that be condemned. 5. Neither
are offensive wars against those who are no
powers and no ordinances of God, such as
are cut-throat Irish, condemned prelates and
papists now in arms, more destructive to the
order established by God than acts of lawful
war are, or the punishing of robbers. And
by all this, protestants in Scotland and Eng-
land should remain in their houses unarmed,
while the papists and Irish come on them
armed, and cut their throats, and spoil, and
plunder at will.
Nor can we think that resistance to a
king, in holding his hands, can be natural ;
if he be stronger, it is not a natural mean of
self-preservation. Nature hath appointed
innocent and offending violence, against un-
just violence, as a means of self-preservation.
Goliath's sword is no natural means to hold
Saul's hands, for a sword hath no fingers ;
and if king Saul suddenly, without colour of
law or reason, or inevitably, should make
personal invasion on David to kill him, Dr
feme saith he may resist ; but resisting is
essentially a re-action of violence. Show us
Scripture or reason for violent holding a
king's hands in an unjust personal invasion,
without any other re-action of offence. Wal-
ter Torrils killed king W. Rufus as he was
THE LAW AND THE PRINCE.
159
shooting at a deer ; the Earl of Suffolk killed
Henry VIII. at tilting ; there is no trea-
sonable intention here, and so no homicide.
Defensive wars are offensive, ex eventu et
ejfectu, not ex causa, or ex intentione.
But it may he asked, if no passive sub-
jection at all be commanded as due to su-
periors. — Ans. None properly so called,
that is, purely passive, only we are, for fear
of the sword, to do our duty. "We are to
suffer ill of punishment of tyrants, ex hypo-
thesi, that they inflict that ill on us some
other way, and in some other notion than
we are to suffer ill of equals ; for we are to
suffer of equals not for any paternal authority
that they have over us, as certainly we are
to suffer ill inflicted by superiors. I demand
of royalists, If tyrants inflicting evil of punish-
ment upon subjects unjustly be powers or-
dained of God : if to resist a power in ty-
rannical acts be to resist God. Since we are
not to yield active obedience to all the com-
mandments of superiors, whether they be
good or ill, by virtue of this place, Rom. xiii.
how is it that we may not deny passive sub-
jection to all the acts of violence exercised,
whether of injustice, whether in these acts of
violence wherein the prince in actu exercito
and formally, punisheth not in God's stead,
or in these wherein he punisheth tyrannically,
in no formal or actual subordination to God,
we owe passive subjection ? I desire an an-
swer to these.
Assert. 5. — Flying from the tyranny of
abused authority, is a plain resisting of rulers
in their unlawful oppression and perverting
of judgment.
All royalists grant it lawful, and ground
it upon the law of nature, that those that
are persecuted by tyrannous princes may
flee, and it is evident from Christ's com-
mandment, " If they persecute you in one
city, flee to another," Matt. x. 23, and by
Matt, xxiii. 34. Christ fled from the fury
of the Jews till his hour was come ; Elias,
Uriah, (Jer. xxvi. 20,) and Joseph and
Mary fled ; the martyrs did hide them-
selves in caves and dens of the earth (Heb.
xi. 37, 38) ; Paul was let down through a
window in a basket at Damascus. This cer-
tainly is resistance ; for look, what legal
power God hath given to a tyrannous ruler,
remaining a power ordained of God, to sum-
mon legally, and set before his tribunal the
servants of God, that he may kill them, and
murder them unjustly, that same legal power
he hath to murder them ; for if it he a
legal power to kill the innocent, and such a
power as they ax-e obliged in conscience to
submit unto, they are obhged in conscience
to submit to the legal power of citing ; for
it is one and the same power. 1. Now, if
resistance to the one power be unlawful, re-
sistance to the other must be unlawful also ;
and if the law of self-defence, or command of
Christ, warrant me to disobey a tyrannous
power commanding me to compear to receive
the sentence of death, that same law far more
shall warrant me to resist and deny passive
subjection in submitting to the unjust sen-
tence of death. 2. When a murderer, self-
convicted, fleeth from the just power of a
judge lawfully citing him, he resisteth the
just power ordained of God (Rom. iii.);
therefore, by the same reason, if we flee
from a tyrannous power, we resist that ty-
rannous power, and so, by royalists' ground,
we resist the ordinance of God by flying.
Now, to be disobedient to a just power sum-
moning a malefactor, is to hinder that lawful
power to be put forth in lawful acts; for the
judge cannot purge the land of blood if the
murderer flee. 3. When the king of Israel
sendeth a captain and fifty lictors to fetch
Elisha, these come instructed with legal
power from the king ; if I may lay fetters
on their power by flight, upon the ground
of self-preservation, the same warrant shall
allow me to oppose harmless violence for my
own safety. 4. Royalists hold it unlawful
to keep a stronghold against the kino-,
though the fort be not the king's house, and
though that David should not have offended
if he had kept Keilah against Saul: Dr Feme
and royalists say it had been unlawful resis-
tance. What more resistance is made to
royal power by walls interposed than by
seas and miles of earth interposed ? Both are
physical resistance, and violent in their kind.
QUESTION XXXI.
WHETHER OR NO SELF-DEFENCE AGAINST
ANY UNJUST VIOLENCE OFFERED TO THE
LIFE, BE WARRANTED BY GOD'S LAW, AND
THE LAW OF NATURE AND NATIONS.
Self-preservation in all creatures in which
is nature, is in the creatures suitable to their
nature. The bull defendeth itself by its
horns, the eagle by her claws and bill, it
will not follow that a lamb will defend itself
160
LEX. REX ; OR,
against a wolf any other way than by flying.
So men, and Christian men, do naturally
defend themselves ; but the manner of self-
defence in a rational creature is rational, and
not always merely natural ; therefore, a po-
litic community, being a combination of many
natures, as neither grace, far less can policy,
destroy nature, then must these many natures
be allowed of God to use a natural self-de-
fence. If the king bring in an army of
foreigners, then a politic community must
defend itself in a rational way. Why ?
Self-defence is natural to man, and natural
to a lamb, but not the same way. A lamb
or a dove naturally defend themselves against
beasts of another kind only by flight, not by
re-action and re-offending ; but it followeth
not that a man defendeth himself from his
enemy only by flight. If a robber invade
me, to take away my life and my purse, I
may defend myself by re-action ; for reason
and grace both may determine the way of
self-preservation. Hence royalists say, a
private man against his prince hath no way
to defend himself but by flight ; therefore,
a community hath no other way to defend
themselves but by flight.
1. The antecedent is false. Dr Feme
alloweth to a private man supplications, and
denying of subsidies and tribute to the
prince, when he employeth tribute to the
destruction of the commonwealth ; which, by
the way, is a clear resistance, and an active
resistance made against the king (Rom. xiii.
6, 7) and against a commandment of God,
except royalists grant tyrannous powers may
be resisted. 2. The consequence is naught,
for a private man may defend himself
against unjust violence, but not any way he
pleaseth ; the first way is by supplications
and apologies, — he may not presently use vio-
lence to the king's servants before he suppli-
cate, nor may he use re-offending, if flight
may save. David used all the three in order.
He made his defence by words, by the me-
diation of Jonathan; when that prevailed
not, he took himself to flight, as the next ;
but because he knew flight was not safe every
way, and nature taught him self-preserva-
tion, and reason and light of grace taught
him the means, and the religious order of
these means for self-preservation, there-
fore he addeth a third, " He took Goliath's
sword, and gathered six hundred armed
men," and after that made use of an host.
Now a sword and armour are not horsing
and shipping ibr flight, but contrary to
flight ; so re-offending is policy's last refuge;
A godly magistrate taketh not away the life
of a subject if other means can compass the
end of the law, and so he is compelled and
necessitated to take away the life; so the
private man, in his natural self-defence, is
not to use re-action, or violent re-offending,
in his self-defence against any man, far less
against the servants of a king, but in the
exigence of the last and most inexorable ne-
cessity. And it is true that M. Symmons
saith, (sect. 11, p. 35,) " Self-defence is not
to be used where it cannot be without sin."
It is certain, necessity is but a hungry plea
for sin, (Luke xiv. 18,) but it is also true,
re-offending comparatively, that I kill rather
than I be killed, in the sinless court of na-
ture's spotless and harmless necessity, is law-
ful and necessary, except I be guilty of self-
murder, in the culpable omission of self-de-
fence. Now a private man may fly, and
and that is his second necessity, and violent
re-offending is the third mean of self-preser-
vation ; but, with leave, violent re-offend-
ing is necessary to a private man, when his
second mean, to wit, flight, is not possible,
and cannot attain the end, as in the case of
David : if flight do not prevail, Goliath's
sword and an host of armed men are lawful.
So, to a church and a community of protes-
tants, men, women, aged, sucking children,
sick, and diseased, who are pressed either
to be killed or forsake religion and Jesus
Christ, flight is not the second mean, nor a
mean at all, because not possible, and there-
fore not a natural mean of preservation ;
for the aged, the sick, the sucking infants,
and sound religion in the posterity cannot
flee; flight here is physically, and by nature's
necessity, impossible, and therefore no lawful
mean. What is to nature physically impos-
sible is no lawful mean. If Christ have a
promise that the ends of the earth (Psal. ii.
8) and the isles shall be his possession, (Isa.
xlix. 1,) I see not how natural defence can
put us to flee, even all protestants and their
seed, and the weak and sick, whom we are
obliged to defend as ourselves, both by the
law of nature and grace. I read that seven
wicked nations and idolatrous were cast out
of their land to give place to the church of
God to dwell there, but show me a warrant
in nature's law and in God's word that three
kingdoms of protestants, their seed, aged,
sick, sucking children, should flee out of
England, Scotland, Ireland, and leave reli-
gion and the land to a king and to papists,
THE LAW AND THE PRINCE.
161
prelates, and bloody Irish, and atheists ; and
therefore to a church and community having
God's right and man's law to the land, vio-
lent re-offending is their second mean (next
to supplications and declarations, &c.) and
flight is not required of them as of a private
man ; yea flight is not necessarily required
of a private man, but where it is a possible
mean of self-preservation ; violent and unjust
invasion of a private man, which is unavoid-
able, may be obviated with violent re-offend-
ing. Now the unjust invasion made on
Scotland in 1640, for refusing the service-
book, or rather the idolatry of the mass,
therein intended, was unavoidable ; it was
impossible for the protestants, their old and
sick, their women and sucking children to
flee over sea, or to have shipping betwixt
the king's bringing an army on them at
Dunse Law, and the prelates' charging of
the ministers to receive the mass book.
Althusius saith well, (Polit. c. 38, n. 78,)
Though private men may flee, yet the es-
tates, if they flee, they do not do their duty,
to commit a country, religion and all, to a
Hon. Let not any object, We may not de-
vise a way to fulfil the prophecy, Psal. ii.
8, 9 ; Isa. xlix. 1 ; it is true, if the way be
our own sinful way ; nor let any object, a
colony went to New England and fled the
persecution. Answer, True, but if fleeing be
the only mean after supplication, there was
no more reason that one colony should go to
New England than it is necessary, and by a
divine law obligatory, that the whole protes-
tants in the three kingdoms, according to
royalists' doctrine, are to leave their native
country and religion to one man, and to po-
pish idolators and atheists, willing to worship
idols with them, and whither then shall the
gospel be, which we are obliged to defend
with our lives ?
There is tutela vitaz proximo,, et remota,
a mere and immediate defence of our life,
and a remote or mediate defence ; when
there is no actual invasion made by a man
seeking our life, we are not to use violent
re-offending. David might have killed Saul
when he was sleeping, and when he cut off
the lap of his garment, but it was unlawful
for him to kill the Lord's anointed, because
he is the Lord's anointed, as it is unlawful
to kill a man, because he is the image of
God, (Gen. ix. 6,) except in case of neces-
sity. The magistrate in case of necessity
may kill the malefactor, though his malefi-
cus do not put him in that case, that he hath
not now the image of God ; now prudence
and light of grace determineth, when we are
to use violent re-offending for self-preserva-
tion, it is not left to our pleasure. In a re-
mote posture of self-defence, we are not to
use violent re-offending : David having Saul
in his hand was in a remote posture of de-
fence, the unjust invasion then was not ac-
tual, not unavoidable, not a necessary mean
in human prudence for self-preservation, for
king Saul was then in a habitual, not in an
actual pursuit of the whole princes, elders,
and judges of Israel, or of a whole commu-
nity and church ; Saul did but seek the life
of one man, David, and that not for religion,
or a national pretended offence, and there-
fore he could not in conscience put hands on
the Lord's anointed ; but if Saul had actual-
ly invaded David for his life, David might,
in that case, make use of Goliath's sword,
(for he took not that weapon with him as a
cypher to boast Saul — it is no less unlawful
to threaten a king than to put hands on
him,) and rather kill or be killed by Saul's
emissaries ; because then he should have
been in an immediate and nearest posture
of actual self-defence. Now the case is
far otherwise between the king and the two
parliaments of England and Scotland, for
the king is not sleeping in his emissaries,
for he hath armies in two kingdoms, and
now in three kingdoms, by sea and land,
night and day, in actual pursuit, not of one
David, but of the estates, and a Christian
community in England and Scotland, and
that for religions, laws, and liberties ; for the
question is now between papist and protes-
tant, between arbitrary or tyrannical go-
vernment, and law government, and there-
fore by both the laws of the politic societies
of both kindoms, and by the law of God and
nature, we are to use violent re-offending
for self-preservation, and put to this neces-
sity, when armies are in actual pursuit of
all the protestant churches of the three
kingdoms, to actual killing, rather than we
be killed, and suffer laws and religion to be
undone.
But, saith the royalist, David's argument,
" God forbid that I stretch out my hand
against the Lord's anointed, my master the
king," concludeth universally, that the kinw
in his most tyrannous acts, still remaining
the Lord's anointed, cannot be resisted.
Ans. — 1. David speaketh of stretching out
his hand against the person of king Saul : no
man in the three kingdoms did so much as
162
LEX, REX I OR,
attempt to do violence to the king's person.
But this argument is inconsequent, for a
king invading, in Ins own royal person, the
innocent subject, suddenly, without colour
of law or reason, and unavoidably, may be
personally resisted, and that with opposing
a violence bodily, yet in that invasion he re-
maineth the Lord's anointed. 2. By this
argument the life of a murderer cannot be
taken away by a judge, for he remaineth one
indued with God's image, and keepeth still
the nature of a man under all the murders
that he doth, but it followeth nowise, that
because God hath endowed his person with
a sort of royalty, of a divine image, that his
life cannot be taken ; and certainly, if to be
a man endued with God's image, (Gen. vi.
9, 10,) and to be an ill-doer worthy of evil
punishment, are different, to be a king and
an ill -doer may be distinguished.
1 . The grounds of self-defence are these :
— A woman or a young man may violently
oppose a king, if he force the one to adul-
tery and incest, and the other to sodomy,
though court flatterers should say, the king,
in regard of his absoluteness, is lord of life
and death ; yet no man ever said that the
king is lord of chastity, faith, and oath that
the wife hath made to her husband.
2. Particular nature yields to the good of
universal nature, for which cause heavy
bodies ascend, airy and light bodies de-
scend. If, then, a wild bull or a goring ox,
may not be let loose in a great market-con-
fluence of people, and if any man turn so
distracted as he smite himself with stones
and kill all that pass by him, or come at
him, in that case the man is to be bound,
and his hands fettered, and all whom he in-
vadeth may resist him, were they his own
sons, and may save their own lives with
weapons, much more a king turning a Nero.
King Saul, vexed with an evil spirit from
the Lord, may be resisted ; and far more if
a king endued with use of reason, shall put
violent hands on all his subjects, kill his
son and heir; yea, and violently invaded,
by nature's law, may defend themselves,
and the violent restraining of such a one is
but the hurting of one man, who cannot be
virtually the commonwealth, but his de-
stroying of the community of men sent out
in wars, as his bloody emissaries, to the dis-
solution of the commonwealth.
3. The cutting off of a contagious mem-
ber, that by a gangrene, would corrupt the
whole body, is well warranted by nature, be-
cause the safety of the whole is to be pre-
ferred to the safety of a part. Nor is it much
that royalists say, The king being the head,
destroy him, and the whole body of the
commonwealth is dissolved ; as cut off a
man's head, and the life of the whole man
is taken away. Because, 1. God cutteth off
the spirits of tyrannous kings, and yet the
commonwealth is not dissolved, no more
than when a leopard or a wild boar, running
through children, is killed, can be the de-
struction of all the children in the land.
2. A king indefinitely is referred to the
commonwealth as an adequate head to a
monarchical kingdom; and remove all kings
and the politic body, as monarchical, in its
frame, is not monarclucal, but it leaveth not
off to be a politic body, seeing it hath other
judges ; but the natural body without the
head cannot live. 3. This or that tyran-
nous king, being a transient mortal thing,
cannot be referred to the immortal com-
monwealth, as it is adequate correlate.
They say, " the king never dieth," yet this
king can die ; an immortal politic body,
such as the commonwealth, must have an
immortal head, and that is a king as a king,
not this or that man, possibly a tyrant, who
is for the time (and eternal things abstract
from time) only a king.
4. The reason of Fortunius Garcias, a
skilful lawyer in Spain, is considerable,
(Comment, in I. ut vim vi ff. de justit. et
jure,) God hath implanted in every crea-
ture natural inclinations and motions to pre-
serve itself, and we are to love ourselves for
God, and have a love to preserve ourselves
rather than our neighbour; and nature's
law teacheth every man to love God best of
all, and next ourselves more than our neigh-
bour ; for the law saith, " Thou shalt love
thy neighbour as thyself." Then saith Mal-
derius, (com. in 12, q. 26, torn. 2, c. 10,
concl. 2,) " The love of ourselves is the
measure of the love of our neighbour." But
the rale and the measure is more perfect,
simple, and more principal than the thing
that is measured. It is tree I am to love
the salvation of the church, it cometh nearer
to God's glory, more than my own salva-
tion, as the wishes of Moses and Paul do
prove; and I am to love the salvation of
my brother more than my own temporal
life; but I am to love my own temporal
life more than the life of any other, and
therefore, I am rather to kill than to be killed,
the exigence of necessity so requiring. Na-
THE LAW AND THE PRINCE.
1C3
ture without sin owneth this as a truth, in
the case of loss of life, Proximus sum e<jo-
met mihi, (Ephes. v. 28, 29,) "He that
loveth his wife, loveth himself; for no man
ever yet hated his own flesh, but nourisheth
it, and cherisheth it, even as the Lord the
church." As then nature tyeth the dam to
defend the young birds, and the lion her
whelps, and the husband the wife, and that
by a comparative re-offending, rather than
the wife or children should be killed ; yea,
he that his wanting to his brother, (if a
robber unjustly invade his brother,) and
helpeth him not, is a murderer of his bro-
ther, so far God's spiritual law requiring
both conservation of it in our person, and
preservation in others. The forced damsel
was commanded to cry for help, and not the
magistrate only, but the nearest private
man or woman was to come, by an obliga-
tion of a divine law of the seventh com-
mandment, to rescue the damsel with vio-
lence, even as a man is to save his enemy's
ox or his ass out of a pit. And if a private
man may inflict bodily punishment of two
degrees, to preserve the life and chastity of
his neighbour, far rather than suffer his
life and chastity to be taken away, then he
may inflict violence of four degrees, even to
killing, for his life, and much more for his
own life. So when a robber, with deadly
weapons, invadeth an innocent traveller to
kill him for his goods, upon the supposition
that if the robber be not killed, the inno-
cent shall be killed. Now the question is,
which of the two, by God's moral law and
revealed will, in point of conscience, ought to
be killed by his fellow ? For we speak not now
of God's eternal decree of permitting evil,
according to the which murderers may cru-
cify the innocent Lord of glory. By no
moral law of God should the unjust robber
kill the innocent traveller ; therefore, in
this exigence of providence, the traveller
should rather kill the robber. If any say,
by God's moral law not one should kill his
fellow, and it is a sin against the moral law
in either to kill the other, I answer, — If
a third shall come in when the robber and
the innocent are invading each other for his
life, all acknowledge by the sixth command-
ment the third may cut off the robber's
arm to save the innocent ; but by what law
of God he may cut off his arm, he may take
his life also to save the other ; for it is mur-
der to wound unjustly, and to dismember a
man by private authority, as it is to take
away his life ; if, therefore, the third may
take away the robber's member, then also
his life, so he do it without malice or ap-
petite of revenge, and if he may do it out
of this principle, " Thou shalt love thy
neighbour as thyself;" because a man is
obliged more to love his own flesh than his
neighbour's, (Ephes. v. 28.) and so more to
defend himself than to defend his neigh-
bour,— then may ho oppose violence to the
robber. As two men drowning in a water,
the one is not obliged by God's law to ex-
pose himself to drowning to save his neigh-
bour; but by the contrary, he is obliged
rather to save himself, though it were with
the loss of his neighbour's life. As in war,
if soldiers in a strait passage be pursued on
their life, nature teacheth them to flee ; if
one fall, his fellow in that exigence is not
only not obliged to lift him up, but he and
the rest flying, though they trample on him
and kill him, they are not guilty of murder,
seeing they hated him not before, (Deut.
xix. 4, 6 ;) so Chemnit. (loe. com. de vindic.
q. 3) alloweth private defence. 1. When
the violence is sudden. 2. And the vio-
lence manifestly inevitable. 3. When the
magistrate is absent and cannot help. 4.
When moderation is kept as lawyers re-
quire. 1 . That it be done incontinent ; if
it be done after the injury, it is revenge,
not defence. 2. Not of desire of revenge.
3. With proportion of armour. If the vio-
lent invader invade not with deadly weapons,
you must not invade him with deadly wea-
pons ; and certainly the law (Exod. xxii.)
of a man's defending his house is clear. 1.
If he come in the night, it is presumed he
is a robber. 2. If he be taken with a wea-
pon breaking the house, he cometh to kill,
a man may defend himself, wife, and chil-
dren. 3. But he is but to wound him, and
if he die of the wound, the defender is free ;
so the defender is not to intend his death,
but to save himself.
5. It were a mighty defect in providence
to man, if dogs by nature may defend them-
selves against wolves, bulls against lions,
doves against hawks, if man, in the absence
of the lawful magistrate, should not defend
himself against unjust violence ; but one
man might raise armies of papists, sick for
blood, to destroy innocent men. They ob-
ject, " When the king is present in his per-
son, and his invaders, he is not absent, and
so though you may rather kill a private
man than suffer yourself to be killed, yet,
164
LEX, REX ; OR,
because prudence determineth the means of
self-defence, you are to expose your life to
hazard for justice of your king, and there-
fore not to do violence to the life of your
king; nor can the body, in any self-defence,
fight against the head, that must be the
destruction of the whole." — Ans. 1. Though
the king be present as an unjust invader in
wars against his innocent subjects, he is ab-
sent as a king, and a father and defender,
and present as an unjust conqueror, and
therefore the innocent may defend them-
selves when the king neither can, nor will
defend them. " Nature maketh a man,
(saith the law, Gener. c. de decur. I. 10, I.
si alius, seel. Bellissime ubique Gloss, in
vers, ex magn. not. per. ilium, text. ff.
quod vi aut clam. l. ait praetor, sect, si
debitorem meum. ff. de hisque in fraud,
credito.,) even a private man, his own judge,
magistrate, and defender, quando copiam
judicis, qui sibi jus reddat, non habet,
when he hath no judge to give him justice
and law." The subjects are to give their
lives for the king, as the king, because the
safety of the king, as king, is the safety of the
commonwealth. But the king, as offering
unjust violence to his innocent subjects, is
not king. Zoannet. (part 3, defens. n. 44,)
— Transgrediens notorie qftcium suum
judex, agit velut privatus aliquis, non ut
magistratus (ff. de injur, est bonus in si-
mili in. I. qui fundum. sect. si. tutor, ff.
pro emptore). 3. If the politic body fight
against this head in particular, not as head,
but as an oppressor of the people, there
is no fear of dissolution ; if the body rise
against all magistracy, as magistracy and
laws, dissolution of all must follow. Parlia-
ments and inferior judges are heads (Num.
i. 16 ; x. 4 ; Deut i. 15 ; Josh. xxii. 21 ;
Mic. hi. 1, 9, 11; 1 Kings viii. 1 ; 1 Chron.
v. 25 ; 2 Chron. v. 2,) no less than the
king ; and it is unlawful to offer violence to
them, though I shall rather think a private
man is to suffer the king to kill him rather
than he kill the king, because he is to pre-
fer the life of a private man to the life of a
public man.
6. By the law of nature a ruler is ap-
pointed to defend the innocent. Now, by
nature, an infant in the womb defendeth
itself first, before the parents can defend
it, then when parents and magistrates are
not, (and violent invading magistrates are
not in that magistrates,) nature hath com-
mended every man to self-defence.
7. The law of nature excepteth no vio-
lence, whether inflicted by a magistrate or
any other. Unjust violence from a ruler is
double injustice. 1. He doth unjustly as a
man. 2. As a member of the common-
wealth. 3. He committeth a special kind
of sin of injustice against his office, but it is
absurd to say we may lawfully defend our-
selves from smaller injuries, by the law of
nature, and not from the greater. "If the
Pope, saith Fer. Vasquez (illust.' quest. L
1, c. 24, n. 24, 25) command to take away
benefices from the just owner, those who are
to execute his commandment are not to
obey, but to write back that that mandate
came not from his holiness, but from the
avarice of his officers ; but if the Pope still
continue and press the same unjust mandate,
the same should be written again to him :
and though there be none above the Pope,
yet there is natural self-defence patent for
all." " Defensio vitce necessaria est, et a
jure naturali profluit,'" (L. ut vim. ff. de
just, et jure 16, ) " Nam quod quisque ob
tutelam corporis sui fecerit, jure fecisse vi-
deatur," (C.jus naturale, 1 distinc. I. l,ff.
de vi et vi armata, I. injuriarum, ff. de in-
juria : C. significasti. 2, de horn. I. scien-
tiam, sect, qui non aliter ff. ad leg. Aquil ;
C. si vero 1, de sent, excom. et I. sed etsi
ff. ad leg. Aquil.) " Etiamsi sequatur ho-
micidium." Vasquez. (1. 1, c. 17, n. 5.) —
" Etiam occidere licet ob defensionem re-
rum. Vim vi repellere omnia jura per-
mittunt in C. significasti." Garcias Fortu-
nius (Comment, in I. ut vim. ff. de instit. et
jur. n. 3.) — " Defendere se est juris na-
turce et gentium. A jure civilifuit addi-
turn moderamen inculpatce tutelce." No-
vel (defens. n. 101. J — " Occidens princi-
pem vel alium tyrannidem exercentem, a
poena homicidii excusatur." Grotius (de
jure belli et pads, I. 2, c. 1, n. 3.) — " Si
corpus impetatur vi presente, cum periculo
vitoz non aliter vitabili, tunc bellum est lici-
tum etiam cum interfectione periculum in-
ferentis, ratio, natura quemque sibi com-
mendat.,, Barclaius (advers. Monar. I. 3,
c. 8. ) — " Est jus cuilibet se tenendi adver-
sus immanem sevitiam."
But what ground (saith the royalist) is
there to take arms against the king ? Jea-
lousies and suspicions are not enough.
Ans. — 1. The king sent first an army to
Scotland, and blocked us up by sea, before we
took arms. 2. Papists were armed in Eng-
land. They have professed themselves in
THE LAW AND THE PRINCE.
165
their religion of Trent to be so much the
holier, that they root out protestants. 3.
The king declared we had broken loyalty to
him since the last parliament. 4. He de-
clared both kingdoms rebels. 5. Attempted
in his emissaries to destroy the parliament ;
6. And to bring in a foreign enemy. And
the law saith, " An imminent danger, which
is a sufficient warrant to take up arms, is not
strokes, but either the terror of arming or
threatening." Glossator, (in d. I. 1, C.) —
" Unde vi. ait non esse verbera expectan-
da, sed vel terrorem armorum sujftccre, vel
minas, et hoc esse imminens periculumP
L. sed et si quemcunque in princ. ff. ad leg.
Aquil I. 3, quod qui armati ff. de vi et vi
armata is qui aggressorem C. ad legem
Corncli.
In most heinous sins, conatus, the endea-
vour and aim, etiamsi effectus non sequa-
tur, puniri debet, is punishable. Bartol.
in I. " Si quis non dicam rapere."
The king hath aimed at the destruction
of his subjects, through the power of wicked
counsellors, and we are to consider not the
intention of the workers, but the nature and
intention of the work. Papists are in arms,
— their religion, the conspiracy of Trent,
their conscience, (if they have any,) their
malice against the covenant of Scotland,
which abjureth their religion to the full,
their ceremonies, their prelates, — lead and
necessitate them to root out the name of
protestant religion, yea, and to stab a king
who is a protestant. Nor is our king, re-
maining a protestant, and adhering to his
oath made at the coronation in both king-
doms, lord of his own person, master of him-
self, nor able, as king, to be a king over pro-
testant subjects, if the papists, now in arms
under his standard, shall prevail.
The king hath been compelled to go
against his own oath, and the laws which
he did swear to maintain ; the Pope sendeth
to his popish armies both dispensations, bulls,
mandates, and encouragements ; the king
hath made a cessation with the bloody Irish,
and hath put arms in the hands of papists.
Now, he being under the oath of God, tyed
to maintain the protestant religion, he hath
a metaphysically subtle, piercing faith of
miracles, who believeth armed papists and
prelates shall defend the religion of protes-
tants ; and those who have abjured prelates
as the lawful sons of the Pope, that i xvrixz><mt
and as the law saith, Quilibet in dubio prai-
sumitur bonus. L. merito prcesumi. L.
non omnes, sect, a Barbaris de re milk.
Charity believeth not ill ; so charity is not
a fool to believe all things. So saith the
law, Semel malus, semper prozsumitur ma-
lus, in eodem genere. C. semel malus de
jure gentium in 6. Once wicked, is always
wicked in that kind. Marius Salamonius,
I. C. in L. ut vim atque injuriam ff. de just
et jure. We are not to wait on strokes, the
terror of armour, omnium consensu, by con-
sent of all is sufficient (n. 3). " If I see
(saith he) the enemy take an arrow out of
the quiver, before he bend the bow, it is
lawful to prevent him with a blow — cuncta-
tio est pcriculosa^ The king's coming with
armed men into the House of Commons to
demand the five members, is very symboli-
cal, and war was printed on that fact, " he
that runneth may read." His coming to Hull
with an army, saith not he had no errand
there, but to ask what it was in the clock.
Novellus, that learned Venetian lawyer, in
a treatise for defence, maketh continuatam
rixam, a continued upbraiding, a sufficient
ground of violent defence. He citeth Dr
Comniter. in L. ut vim. ff. dc just et jure.
Yea, he saith, drunkenness, (defens. n. 44,)
error, (n. 46,) madness, (n. 49, 50,) igno-
rance, (n. 51, 52,) impudence, (n. 54,) ne-
cessity, (n. 56,) laciviousness, (n. 58,) con-
tinual reproaches, (n. 59,) the fervour of
anger, (n. 64,) threatening, (n. 66,) fear
of imminent danger, (n. 67,) and just
grief, do excuse a man from homicide, and
that in these he ought to be more mildly
punished, quia obnubilatum et mancum
est consilium, reason in these being lame
and clogged. (Ambros. 1. 1. offic.) Qui
non repellit injuriam a socio, cum potest,
tarn est in vitio, quam ille qui facit. And
as nature, so the law saith, " When the
losses are such as can never be repaired, as
death, mutilation, loss of chastity, quoniam
facta infecta fieri nequeunt, things of that
kind once done, can never be undone, we
are to prevent the enemy" (I. Zonat. tract,
defens. par. 3, I. in bello sect, facta, de ca-
pit. notat. Gloss, in I. si quis provocatione).
If the king send an Irish rebel to cast me
over a bridge, and drown me in a water, I
am to do nothing, while the king's emissary
first cast me over, and then in the next
room I am to defend myself; but nature
and the law of self-defence warranteth me
(if I know certainly his aim,) to horse him
first over the bridge, and then consult how
to defend myself at my own leisure.
166
LEX, REX ; OR,
Royalists object that David, in his defence,
never invaded and persecuted Saul ; yea,
when he came upon Saul and his men sleep-
ing, he would not kill any ; but the Scottish
and parliament's forces not only defend, but
invade, offend, kill, and plunder ; and this
is clearly an offensive, not a defensive war.
Ans. 1. — There is no defensive war dif-
ferent in specie and nature from an offen-
sive war ; if we speak physically, they differ
only in the event and intention of the heart ;
and it is most clear that the affection and
intention doth make one and the same ac-
tion of taking away the life, either homicide,
or no homicide. 1. If a man, out of hatred,
deliberately take away his brother's life, he
is a murderer eatenus, but if that same man
had taken away that same brother's life, by
the flying off of an axe-head off the staff,
while he was hewing timber, he neither
hating him before, nor intending to hurt
his brother, he is no murderer, by God's
express law, (Deut. iv. 42 ; xix. 4 ; Joshua
xx. 5.) 2. The cause between the king and
the two parliaments, and between Saul and
David, are so different in this, as it is much
for us. Royalists say, David might, if he
had seen offending to conduce for self-pre-
servation, have invaded Saul's men, and, say
they, the case was extraordinary, and bind-
eth not us to self-defence ; and thus they
must say — for offensive weapons, such as
Goliath's sword, and an host of armed men,
cannot by any rational man be assumed (and
David had the wisdom of God) but to of-
fend, if providence should so dispose ; and
so what was lawfpl to David, is lawful to us
in self-defence ; he might offend lawfully,
and so may we.
2. If Saul and the Philistines, aiming (as
under an oath) to set up dagon in the land
of Israel, should invade David, and the
princes and elders of Israel who made him
king ; and if David, with an host of armed
men, he and the princes of Israel, should
come in that case upon Saul and the Philis-
tines sleeping, if in that case David might
not lawfully have cut off the Philistines, and
as he defended in that case God's church
and true religion, if he might not then have
lawfully killed, I say, the Philistines, I re-
mit to the conscience of the reader. Now
to us, papists and prelates under the king's
banner, are Philistines, introducing the ido-
latry of bread-worship and popery, as hate-
ful to God as dagon-worship.
3. Saul intended no arbitrary govern-
ment, nor to make Israel a conquered peo-
ple, nor yet to cut off all that professed the
true worship of God ; nor came Saul against
these princes, elders and people, who made
him king, only David's head would have
made Saul lay down arms ; but prelates, and
papists, and malignants, under the king, in-
tend to make the king's sole will a law, to
destroy the court of parliament, which put-
teth laws in execution against their idola-
try ; and their aim is, that protestants be a
conquered people ; and their attempt hath
been hitherto to blow up king and parlia-
ment, to cut off all protestants; and they
are in arms, in divers parts of the kingdom,
against the princes of the land, who are no
less judges and deputies of the Lord than
the king himself; and would kill, and do
kill, plunder, and spoil us, if we kill not
them. And the case is every way now be-
tween armies and armies, as between a sin-
gle man unjustly invaded for his life, and an
unjust invader. Neither in a natural action,
such as is self-defence, is that of policy to be
urged, — none can be judge in his own cause,
when oppression is manifest : one may be
both agent and patient, as the fire and
water conflicting ; there is no need of a
judge, a community casts not off nature;
when the judge is wanting, nature is judge,
actor, accused, and all.
Lastly, no man is lord of the members
of his own body, (m. I. liber homo ff. ad leg.
Aqui.) nor lord of his own life, but is to be
accountable to God for it.
QUESTION XXXII.
WHETHER OR NOT THE LAWFULNESS OF DE-
FENSIVE WARS HATH ITS WARRANT IN GOD'S
WORD, FROM THE EXAMPLE OF DAVID, ELI-
SHA, THE EIGHTY PRIESTS WHO RESISTED
UZZIAH, &C.
David defended himself against king Saul,
1. By taking Goliath's sword with him. 2.
By being captain to six hundred men ; yea,
it is more than clear, (1 Chron. xii. 22—34,)
that there came to David a host like the host
of God, to help against Saul, exceeding four
thousand. Now, that this host came war-
rantably to help him against Saul, I prove,
1. Because it is said, "Now these are they
that came to David to Ziklag, while he
kept himself close, because of Saul the son
:he law and the prixce.
167
of Kish ; and they were amongst the mighty '
men, helpers of the war ;" and then so many
mighty captains are reckoned out. " There
came of the children of Benjamin and Ju-
dah to the hold of David." And there fell
some of Manasseh to David, — " As he went
to Ziklag there fell to him of Manasseh, Ke-
nah and Jozabad, Jediel and Michael, and
Jozabad and Elihu, and Zilthai, captains of
the thousands that were of Manasseh." "And
they helped David against the band of the
rovers." " At that time, day by day, there
came to David, until it was a great host, like
the host of God." Now the same expres-
sion that is in the first verse, where it is
said they came to help David against Saul,
is repeated in ver. 16, 19 — 23. 2. That
they warrantably came, is evident ; because,
{].) The Spirit of God commendeth them
for their valour and skill in war, (ver. 2
&c), which the Spirit of God doth not in
unlawful wars. (2.) Because Amassai, (ver.
18), the Spirit of the Lord coming on him,
saith, "Thine are we, David, and on thy
side, thou son of Jesse ; peace, peace unto
thee, and peace to thy helpers, for thy God
helpeth thee." The Spirit of God inspireth
no man to pray peace to those who are in an
unlawful war. 3. That they came to David's
side only to be sufferers, and to flee with
David, and not to pursue and offend, is ridi-
culous. 1. It is said, (ver. 1,) " They came
to David to Ziklag, while he kept himself
close, because of Saul the son of Kish. And
they were amongst the mighty men, helpers
of the war." It is a scorn to say, that
their might, and their helping in war, con-
sisted in being mere patients with David,
and such as fled from Saul, for they had
been on Saul's side before ; and to come
with armour to flee, is a mocking of the
word of God. 2. It is clear, the scope of
the Spirit of God is to show how God help-
ed his innocent servant David against his
persecuting prince and master, king Saul, in
moving so many mighty men of war to come
in such multitudes, all in arms, to help him
in war. Now to what end would the Lord
commend them as fit for war, " men of might,
fit to handle shield and buckler, whose faces
are as the faces of lions, as swift as the roes
on the mountains," (ver. 8,) and commend
them as helpers of David, if it were unlaw-
ful for David, and all those mighty men, to
carry arms to pursue Saul and his followers,
and to do nothing with their armour but
flee ? Judge if the Spirit of God, in reason,
could say, " All these men came armed with
bows," (ver. 2,) and could " handle both
the right hand and the left in flinging stones,
and shooting of arrows," and that (ver. 22)
all these " came to David, being mighty
men of valour, and they came as captains
over hundreds, and thousands, and they put
to flight all them of the valleys, both to-
ward the east and toward the west," (ver.
13, 15,) and that " David received them,
and made them captains of the band," if
they did not come in a posture of war, and
for hostile invasion, if need were? For if
they came only to suffer and to flee, not to
pursue, bowmen, captains, and captains of
bands made by David, and David's helpers
in the war, came not to help David by fly-
ing, that was a hurt to David, not a help.
It is true, Mr Symmons saith, (1 Sam. xxii.
2,) " Those that came out to David streng-
thened him, but he strengthenea not them ;
and David might easily have revenged him-
self on the Ziphites, who did good will to
betray him to the hands of Saul, if his con-
science had served him.
Ans. 1. — This would infer that these
armed men came to help David against his
conscience, and that David was a patient
in the business. The contrary is in the text,
(1 Sam. xxvi. 2,) "David became a captain
over them ;" and (1 Chron. xii. 17, 18,)
" If ye come peaceably to help me, my heart
shall be knit to you. Then David received
them, and made them captains of the band."
2. David might have revenged himself upon
the Ziphites, true ; but that conscience hin-
dered him cannot be proved. To pursue an
enemy is an act of a council of war ; and he
saw it would create more enemies, not help
his cause. 3. To David to kill Saul sleep-
ing, and the people who, out of a mis-in-
formed conscience came out, many of them
to help their lawful prince against a traitor
(as was supposed) seeking to kill their king,
and to usurp the throne, had not been wis-
dom nor justice ; because to kill the enemy
in a just self-defence, must be, when the
enemy actually doth invade, and the life of
the defendant cannot be otherwise saved.
A sleeping enemy is not in the act of unjust
pursuit of the innocent ; but if an army
of papists, Philistines, were in the fields
sleeping, pursuing not one single David only
for a supposed personal wrong to the king,
but lying in the fields and camp against the
whole kingdom and religion, and labouring
to introduce arbitrary government, popery,
168
LEX, REX ; OR,
idolatry, and to destroy laws, and liberties,
and parliaments, then David were obliged
to kill these murderers in their sleep.
If any say, The case is all one in a natu-
ral self-defence, whatever be the cause, and
whoever be the enemy, because the self-de-
fender is not to offend, except the unjust in-
vader be in actual pursuit, — now armies in
their sleep are not in actual pursuit.
Ans. 1. — When one man with a multi-
tude invadeth one man, that one man may
pursue, as he seeth most conducible for self-
defence. Now the law saith, " Threaten-
ings and terror of armour maketh imminent
danger," and the case of pursuit in self-de-
fence lawful ; if therefore an army of Irish
rebels and Spaniards were sleeping in their
camp, and our king in a deep sleep in the
midst of them, and these rebels actually in
the camp besieging the parliament, and the
city of London, most unjustly to take away
parliament, laws, and liberties of religion,
it should follow that General Essex ought
not to kill the king's majesty in his sleep,
for he is the Lord's anointed ; but will it
follow that General Essex may not kill the
Irish rebels sleeping about the king ; and
that he may not rescue the king's person out
of the hands of the papists and rebels, en-
snaring the king, and leading him on to po-
pery, and to employ his authority to defend
popery, and trample upon protestant parlia-
ments and laws? Certainly from this ex-
ample this cannot be concluded. For armies
in actual pursuit of a whole parliament,
kingdom, laws, and religion, (though sleep-
ing in the camp,) because in actual pursuit,
may be invaded, and killed, though sleeping.
And David useth no argument, from con-
science, why he might not kill Saul's army,
(I conceive he had not arms to do that,) and
should have created more enemies to himself,
and hazard his own life, and the life of all his
men, if he had of purpose killed so many
sleeping men ; yea, the inexpedience of that,
for a private wrong to kill God's misled peo-
ple, should have made all Israel enemies to
David. But David useth an argument, from
conscience only, to prove it was not lawful
for him to stretch forth his hand against
the king ; and for my part, so long as he re-
maineth king, and is not dethroned by those
who made him king at Hebron, to put hands
on his person, I judge utterly unlawful. One
man sleeping cannot be in actual pursuit of
another man ; so that the self-defender may
lawfully kill him in his sleep ; but the case
is far otherwise in lawful wars ; the Israel-
ites might lawfully kill the Philistines en-
camping about Jerusalem to destroy it, and
religion, and the church of God, though
they were all sleeping ; even though we
suppose king Saul had brought them in by
his authority, and though he were sleeping
in the midst of the uncircumcised armies ;
and it is evident, that an host of armed ene-
mies, though sleeping, by the law of self-
defence, may be killed, lest they awake and
kill us ; whereas one single man, and that a
king, cannot be killed. 2. I think, certainly,
David had done unwisely, and hazarded his
own life and all his men's, if he, and Abime-
lech, and Abishai, should have killed an host
of their enemies sleeping : that had been a
work as impossible to three, as hazardous to
all his men.
Dr Feme, as Arnisaeus did before him,
saith, " The example of David was extraor-
dinary, because he was anointed and designed
by God as successor to Saul, and so he must
use an extraordinary way of guarding him-
self." Arnisaeus (c. 2, n. 15) citeth Alberic.
Gentilis, that David was now exempted from
amongst the number of subjects.
Ans. — 1. There were not two kings in
Israel now, both David and Saul. 1. David
acknowledged his subjection in naming
Saul the Lord's anointed, and his master,
lord and king; and, therefore, David was
yet a subject. 2. If David would have
proved his title to the crown by extraordi-
nary ways, he who killed Goliath extraordi-
narily might have killed Saul by a miracle ;
but David goeth a most ordinary way to
work for self-defence, and his coming to the
kingdom was through persecution, want,
eating shew-bread in case of necessity, de-
fending himself with Goliath's sword. 3.
How was anything extraordinary and above
a law, seeing David might have killed his
enemy Saul, and, according to God's law,
he spared him ? and he argueth from a mo-
ral duty, He is the Lord's anointed, there-
fore I will not kill him. Was this extraor-
dinary above a law? then, according to
God's law, he might have killed him. loy-
alists cannot say so. What ground to say
one of David's acts in his deportment to-
wards Saul was extraordinary, and not all ?
Was it extraordinary that David fled ? No ;
or that David consulted the oracle of God
what to do when Saul was coming against
him? 4. In an ordinary fact something
may be extraordinary, — as the dead sleep
THE LAW AXD THE PUIXCK.
169
from the Lord upon Saul and his men, (1
Sam. xxvi.) and yet the fact, according to
its substance, ordinary. 5. Nor is this ex-
traordinary,— that a distressed man, being
an excellent warrior, as David was, may use
the help of six hundred men, who, by the
law of charity, are to help to deliver the
innocent from death ; yea, all Israel were
obliged to defend him who killed Goliath. 6.
Royalists make David's act of not putting
hands on the Lord's anointed an ordinary
moral reason against resistance, but his put-
ting on of armour they will have extraordi-
nary ; and this is, I confess, a short way to
an adversaiy to cull out something that is
for his cause and make it ordinary, and
something that is against his cause must be
extraordinary. 7. These men, by the law
of nature, were obliged to join in arms with
David ; therefore, the non-helping of an op-
pressed man must be God's ordinary law, —
a blasphemous tenet. 8. If David, by an
extraordinary spirit, killed not king Saul,
then the Jesuits' way of killing must be
God's ordinary law.
2. David certainly intended to keep Kei-
lah against lung Saul, for the Lord would not
have answered David in an unlawful fact ;
for that were all one as if God should teach
David how to play the traitor to his king ;
for if God had answered, They will not de-
liver thee up, but they shall save thee from
the hand of Saul, — as David believed he
might say this, as well as its contradicent,
then David behoved to keep the city ; for
certainly David's question pre-supposeth he
was to keep the city.
The example of Elisha the prophet is con-
siderable, (2 Kings vi. 32,) " But Elisha
sat in his house, and the elders with him ;
and the king sent a man before him ; but,
ere the messengers came to him, he said to
the elders, See now, the son of a murderer
hath sent to take away mine head." 1. Here
is unjust violence offered by king Joram to an
innocent man. Elisha keepeth the house
violently against the king's messenger, as we
did keep castles against king Charles' un-
lawful messengers. " Look (saith he) when
the messenger cometh, — shut the door." 2.
There is violence also commanded, and re-
sistance to be made, " Hold him fast at
the door." In the Hebrew it is, J"lS"0
inK DnsfnSv-hVyi tud Aria*
Montan. : Claudite ostium, et oppremetis
eumin ostio, " Violently press him at the
door." And so the Chaldee paraphrase, Ne
sinatis cum introire, Jerome. The LXX.
Interpreters, IkSx'^olti *h™ U ™ 9^« Mi"
dite eum in ostio, " Press him betwixt the
door and the wall." It is a word of bodily
violence, according to Vatablus ; yea, Theo-
doret will have king Joram himself holden
at the door. And, 3. It is no answer that
Dr Feme and other royalists give, that
Elisha made no personal resistance to the
king himself, but only to the king's cut-
throat, sent to take away his head ; yea,
they say, it is lawful to resist the king's cut-
throats. But the text is clear, that the vio-
lent resistance is made to the king himself
also, for he addeth, " Is not the sound of his
master's feet behind him ?" And by this
answer, it is lawful to keep towns with iron
gates and bars, and violently to oppose the
king's cut-throats coming to take away the
heads of the parliaments of both kingdoms,
and of protestants in the three kingdoms.
Some royalists are so impudent as to say
that there was no violence here, and that
Elisha was an extraordinary man, and that
it is not lawful for us to call a king the son
of a murderer, as the prophet Elisha did ;
but Feme, (sect. 2, p. 9,) forgetting him-
self, saith from hence, "It is lawful to
resist the prince himself, thus far, as to
ward his blows, and hold his hands." But
let Feme answer, if the violent binding of
the prince's hand, that he shall not be able
to kill, be a greater violence done to his
royal person than David's cutting off the
skirt of Saul's garment; for certainly tlie
royal body of a prince is of more worth than
his clothes. Now it was a sin, I judge, that
smote David's conscience, that he being a
subject, and not in the act of natural self-
defence, did cut the garment of the Lord's
anointed. Let Feme see, then, how he will
save his own principles; for certainly he
yieldeth the cause for me. I judge that
the person of the king, or any judge who is
the Lord's deputy, as is the king, is sacred ;
and that remaining in that honourable case,
no subject can, without guiltiness before
God, put hands on his person, the case of
natural self-defence being excepted ; for,
because the royal dignity doth not advance
a king above the common condition of men,
and the throne maketh him not leave off to
be a man, and a man that can do wrong;
and therefore as one that doth manifest vio-
lence to the life of a man, though his sub-
ject, he may be resisted with bodily resist-
ance, in the case of unjust and violent in-
2 a
170
LEX, REX ; OR,
vasion. It is a vain thing to say, " Who
shall be judge between the king and his sub-
jects ? The subject cannot judge the king,
because none can be judge in his own cause,
and an inferior or equal cannot judge a
superior or equal." But I answer, 1. This
is the king's own cause also, and he doth
unjust violence as a man, and not as a king,
and so he cannot be judge more than the
subject. 2. Every one that doth unjust vio-
lence, as he is such, is inferior to the inno-
cent, and so ought to be judged by some.
3. There is no need of the formality of a
judge in things evident to nature's eye, such
as are manifestly unjust violences. Nature,
in acts natural of self-defence, is judge,
party, accuser, witness, and all; for it is
supposed the judge is absent when the
judge doth wrong. And for the plea of
Elisha's extraordinary spirit, it is nothing
extraordinary to the prophet to call the
king the son of a murderer, when he com-
plaineth to the elders for justice of his op-
pression, no more than it is for a plaintiff to
libel a true crime against a wicked person,
and if Elisha's resistance came from an ex-
traordinary spirit, then it is not natural for
an oppressed man to close the door upon a
murderer, then the taking away of the in-
nocent prophet's head must be extraordinary,
for this was but an ordinary and most na-
tural remedy against this oppression ; and
though to name the king the son of a mur-
derer be extraordinary, (and I should grant
it without any hurt to this cause,) it follow -
eth nowise that the self-defence was extra-
ordinary. 4. (2 Chron. xxvi. 17.) Four
score of priests, with Azariah, are com-
mended as valiant men. LXX. net lumpiat
Heb. 7 ♦("!"* J H Arms Montan. Filii virtu-
tis, Men of courage and valour, for that
they resisted Uzziah the king, who would
take on him to burn incense to the Lord,
against the law. Mr Symmons, (p. 34,
sect. 10,) They withstood him not with
swords and weapons, but only by speaking,
and one but spake. I answer, 1. It was a
boddy resistance ; for beside that, Jerome
turneth it, Virifortissimi, most violent men.
And it is a speech in the Scriptures taken
for men valorous for war ; as 1 Sam. xvi. 25 ;
2 Sam. xvii. 10 ; 1 Chron. v. 18 ; and so
doth the phrase ^ipf TO J Potent in va-
lour; and the phrase, 7in-tyiN ^ Sam.
xxiv. 9 ; xi. 16 ; 1 Sam. xxxi. 12 ; and
therefore all the eighty, not only by words,
but violently, expelled the king out of the
temple. 2. VAty-Sp MQW\ Ar. Mont.
Et steterunt contra Huzzi-Jahu ; the LXX
say, »a) tvttrrivtav they resisted the king. So
Dan. xi. 17, The armies of the south shall
not stand, Dan. viii. 25, it is a word of
violence. 3. The text saith, (ver. 20,) and
they thrust him out. irOS'nD'l Arias
Mont. Et fecerunt eum festinare ; Hieron.
Festinato expulerunt eum. The LXX. say,
The priest xu-ritrTairtv uiriv Ixiihv ', SO Vata-
blus,1 They cast him out. 4. It is said, (ver.
21,) " He was cut off from the house of
the Lord." Dr Feme saith, (sect. 4, p. 50,)
" They are valiant men who dare withstand
a king in an evil way, by a home reproof,
and by withdrawing the holy things from
him, especially since, by the law, the leper
was to be put out of the congregation."
Ans. 1. — He contradicteth the text. It
was not a resistance by words, for the text
saith, " They withstood him, and they thrust
him out violently." 2. He yieldeth the
cause, for to withdraw the holy things of
God by corporeal violence, and violently to
pull the censer out of his hand, that he
should not provoke God's wrath by offering
incense to the Lord, is resistance; and the
like violence may, by this example, be used
when the king useth the sword and the
militia to bring in an enemy to destroy the
kingdom. It is no less injustice against the
second table, that the king useth the sword
to destroy the innocent than to usurp the
censer against the first table. But Dr
Feme yieldeth, that the censer may be
pulled out of his hand, lest he provoke God
to wTath ; therefore, by the same very rea-
son, afortiore, the sword, the castles, the
sea-ports, the militia, may be violently
pulled out of his hand ; for if there was an
express law that the leper should be put out
of the congregation, and therefore the king
also should be subject to his church-censor,
then he subjecteth the king to a punishment
to be inflicted by the subjects upon the
king. 1. Therefore the king is obnoxious
to the co-active power of the law. 2. There-
fore subjects may judge him and punish
him. 3. Therefore he is to be subject to
all church-censors no less than the people.
4. There is an express law that the leper
should be put out of the congregation.
What then ? Flattering court divines say,
1 Vatab. — Deturbarunt enm ex illo loco, compul-
snsque ut egrederetur, in not. Festinanter egredi
eum coegerunt, hoc est, extruserunt eum.
THE LAW AND THE PRINCE.
171
" The king is above all these laws ;" for
there is an express law of God as express as
that ceremonial law on touching lepers, and
a more binding law, that the murderer
should die the death. Will royalists put no
exception upon a ceremonial law of expel-
ling the leper, and yet put an exception
upon a divine moral law, concerning the
punishing of murderers given before the
law on Mount Sinai. (Gen. vi. 9.) They
so declare that they accept the persons of
men. 5. If a leper king could not actually
sit upon the throne, but must be cut off
from the house of the Lord, because of an
express law of God, these being inconsistent,
that a king remaining amongst God's people,
ruling and reigning, should keep company
with the church of God, and yet be a leper,
who was to be cut off, by a divine law, from
the church. Now, I persuade myself, that
far less can he actually reign in the full use
of the power of the sword, if he use the
sword to cut off thousands of innocent
people ; because, murdering the innocent
and the fatherless, and royal governing in
righteousness and godliness, are more incon-
sistent by God's law, being morally oppo-
site, than remaining a governor of the peo-
ple, and the disease of leprosy, are incom-
patible. 6. I think not much that Barclay
saith, (cont. Monar. 1. 5, c. 11,) " Uzziah
remained king, after he was removed from
the congregation for leprosy." 1. Because
that toucheth the question of dethroning
kings, this is an argument brought for
violent resisting of kings, and that the
people did resume all power from Uzziah,
and put it in the " hand of Jotham his son,
who was over the king's house, judging the
people of the land " (ver 21). And by this
same reason the parliaments of both king-
doms may resume the power once given to
the king, when he hath proved more unfit
to govern morally than Uzziah was cere-
monially, that he ought not to judge the
people of the land in this case. 2. If the
priests did execute a ceremonial law upon
king Uzziah, far more may the three estates
of Scotland, and the two houses of parlia-
ment of England, execute the moral law of
God on their king.
If the people may covenant by oath to
rescue the innocent and unjustly-condemned
from the sentence of death, notoriously
known to be tyrannous and cruel, then may
the people resist the king in his unlawful
practices ; but this the people did in the
matter of Jonathan. Mr Symmons (p. 32)
and Dr Feme (sect. 9, 49) say, " That
with no violence, but by prayers and tears,
the people saved Jonathan ; as Peter was
rescued out of prison by the prayers of the
church, king Saul might easily be entreated
to break a rash vow to save the life of his
eldest son." — Ans. 1. I say not the com-
mon people did it, but the people, including
proceres rcgni, the princes of the land, and
captains of thousands. 2. The text hath
not one word or syllable of either prayers,
supplications or tears ; but by the contrary,
they bound themselves by an oath, contrary
to the oath of Saul, (1 Sam. xiv. 44, 45,)
and swore, " God forbid: as the Lord liveth,
there shall not one hair of his head fall to the
ground. So the people rescued Jonathan."1
The church prayed not to God for Peter's
deliverance with an oath, that they must
have Peter saved, whether God will or no.
Though we read of no violence used by the
people, yet an oath upon so reasonable a
ground, — 1. Without the king's consent.
2. Contrary to a standing law that they had
agreed unto. (ver. 24.) 3. Contradictory to
the king's sentence and unjust oath. 4.
Spoken to the king in his face, — all these
prove that the people meant, and that the
oath ex conditione operis, tended to a vio-
lent resisting of the king in a manifestly
unjust sentence. Chrysostom, horn. 14, ad
Pop., Antioch accuseth Saul as a murderer
in this sentence, and praiseth the people :
so Junius, Peter Martyr2 (whom royalists
impudently cite) ; so Cornelius a Lapide,
Zanchius, Lyra, and Hugo Cardinalis say,
" It was tyranny in Saul, and laudable that
the people resisted Saul ;" and the same
is asserted by Josephus (1. 6, antiquit. c. 7 ;
so Althusius, Polit. c. 38, n. 109).
We see also, (2 Chron. xxi. 10.) that
Libnah revolted from under Jehoram, be-
cause he had forsaken the Lord God of his
fathers. It hath no ground in the text that
royalists say, that the defection of Libnah
is not justified in the text, but the cause is
from the demerit of wicked Jeboram, be-
cause he made defection from God. Libnah
made defection from him, as the ten tribes
revolted from Rehoboam for Solomon's
i Chald. Par. — Manifestum est quod Jonathan
peccavit per ignorantiam.
3 P. Mart, saith with a doubt, Si ista seditiose
fecerunt — nullo modo excusari possunt. Yea. he
saith they might suffragiis, with their suffrages free
him.
172
LEX, REX ; OR,
idolatry, which, before the Lord, procured
this defection, yet the ten tribes make de-
fection for oppression. I answer, "Where the
literal meaning is simple and obvious, we
are not to go from it. The text showeth
what cause moved Libnah to revolt :x it was
a town of the Levites, and we know they
were longer found in the truth than the
ten tribes (2 Chron. xiii. 8 — 10; Hosea
xi. 12). Lavater saith, Jehoram hath pressed
them to idolatry, and therefore they re-
volted. Zanchius and Cornelius aLapide say,
This was the cause that moved them to re-
volt, and it is clear, (ver. 13,) he caused Ju-
dah and the inhabitants of Jerusalem to go
a whoring from God, and no doubt tempted
Libnah to the like."2
Yea, the city of Abel (2 Sam. xx.) did
well to resist Joab, David's general, for he
came to destroy a whole city for a traitor's
sake, for Sheba ; they resisted and defended
themselves. The wise woman calleth the city
a mother in Israel, and the inheritance of
the Lord ; (ver. 19 ;) and Joab professeth,
(ver. 20,) far be it from him to swallow up
and destroy Abel. The woman saith, (ver.
18,) " They said of old, they shall surely
ask counsel at Abel ; and so they ended the
matter ;" that is, the city of Abel was a
place of prophets and oracles of old, where
they asked responses of their doubts, and
therefore peace should be first offered to
the city before Joab should destroy it, as the
law saith, Deut. xx. 10. From all which
it is evident, that the city, in defending
itself, did nothing against peace, so they
should deliver Sheba, the traitor, to Joab's
hand, which they accordingly did ; and
Joab pursued them not as traitors for keep-
ing the city against the king, but professeth
in°that they did no wrong.
QUESTION XXXIII.
WHETHER OR NO THE PLACE, ROM. XIII. 1,
PROVE THAT IN NO CASE IT IS LAWFUL TO
RESIST THE KING.
The special ground of royalists from Rom.
xiii., against the lawfulness of defensive wars,
1 P. Mar. Com. in 2 Reg. c. 8, saith Libnah re-
volted, Quia subditos nitebatur cogere ad idololatri-
am, quod ipsi libnenses pati noluerunt et raerito :
principibus enim parendum est, verum usque ad aras.
2 Vatab. in not. — Irapulit Judaeos ad idololatri-
am, alioqui jam pronos ad rultuin idololorum.
is to make Paul (Rom. xiii.) speak only of
kings. Hugo Grotius (de jure belli et pac.
I. 1, c. 4, n. 6), and Barclay {coat. Monar.
I. 3, c. 9) say, " Though Ambrose expound
the place, Rom. xiii., de solis regibus, of
kings only, (this is false of kings only, he
doth not, but of kings principally}) yet it
followeth not that all magistrates, by this
place, are freed from all laws, because (saith
he) there is no judge above a king on earth,
and therefore he cannot be punished ; but
there is a judge above all inferior judges,
and therefore they must be subject to laws."
So Dr Feme followeth him, (sect. 2, p. 10,)
and our poor Prelate must be an accident to
them, (Sacr. San. Maj. c. 2, p. 29,) for his
learning cannot subsist per se.
Assert. 1. In a free monarchy (such as
Scotland is known to be) by the higher
power (Rom. xiii.) is the king principally in
respect of dignity understood, but not solely
and only, as if inferior judges were not
higher powers. 1. I say in a free mo-
narchy ; for no man can say, that where
there is not a king, but only aristocracy,
and government by states, as in Holland,
that there the people are obliged to obey
the king ; and yet this text, I hope, can reach
the consciences of all Holland, that there
every soul must be subject to the higher
powers, and yet not a subject in Holland is
to be subject to any king : for non entis
nulla sunt accidentia. 2. I said the king,
in a free monarchy, is here principally un-
derstood in regard of dignity, but not in re-
gard of the essence of a magistrate, because
the essence of a magistrate doth equally
belong to all inferior magistrates, as to the
king, as is already proved ; (let the Prelate
answer if he can ;) for though some judges
be sent by the king, and have from him
authority to judge, yet this doth no more
prove that inferior judges are improperly
judges, and only such by analogy, and not
essentially, than it will prove a citizen is
not essentially a citizen, nor a church-officer
essentially a church-officer, nor a son not
essentially a living creature, because the for-
mer have authority from the incorporation
of citizens, and of church-officers, and the
latter hath his life by generation from his
father, as God's instrument. For though
the citizen and the church-officers may be
judged by their several incorporations that
made them, yet are they also essentially citi-
zens and church-officers, as those who made
them such.
THE LAW AND THE PRINCE.
173
Assert. 2. — There is no reason to restrain
the higher powers to monarchs only, or yet
principally, as if they only were essentially
powers ordained of God, 1. Because he call-
eth them ifyvriai faux™"" higher powers.
Now this will include all higher powers, as
Piscator observeth on the place; and cer-
tainly Rome had never two or three kings
to which every soul should be subject. If
Paul had intended that they should have
given obedience to one Nero, as the only
essential judge, he would have designed him
by the noun in the singular number. 2. All
the reasons that the apostle bringeth to
prove that subjection is due, agreeth to infe-
rior judges as well as to emperors, for they
are powers ordained of God, and they bear
the sword, and we must obey them for con-
science sake, and they are God's deputies,
and their judgment is not the judgment of
men, but of the Lord (2 Chron. xix. 6, 7 ;
Deut. i. 16 ; Numb. xi. 16, 17). Tribute
and wages be no less due to them, as minis-
ters and servants, for their work, than to
the king, &c. 3. The apostle could not omit
obedience to the good civil laws enacted by
the senate, nor could he omit to command
subjection to rulers, if the Romans should
change the government, and abolish mo-
narchy, and erect their ancient form of go-
vernment before they had kings. 4. This
is canonical Scripture, and a clear exposi-
tion of the fifth commandment, and so must
reach the consciences of all Christian repub-
lics, where there is no monarchy. 5. Pa-
rallel places of Scripture prove this. Paul
(1 Tim. ii. 1, 2) will have prayers made to
God for kings, and for all that are in autho-
rity, and the intrinsical end of all is a godly,
honest, and peaceable life. And (1 Pet. ii.
13) " Submit to every ordinance of man for
the Lord's sake ;" also, (Tit. hi. 1,) it is
true, subjection to Nero, of whom Tertullian
said, (Apol. 5,) Nihil nisi grande bonum a
Nerone damnatum, is commanded here, but
to Nero as such a one as he is obliged, de
jure, to be, (whether you speak of the office
in abstracto, or of the emperor in concreto,
in this notion, to me it is all one,) but that
Paul commandeth subjection to Nero, and
that principally and solely, as he was such
a man, de facto, I shall then believe, when
antichristian prelates turn Paul's bishops,
(1 Tim. ii.,) which is a miracle. 6. Inferior
judges are not necessarily sent by the king,
by any divine law, but chosen by the people,
as the king is ; and, de facto, is the practice
of creating all magistrates of cities in both
kingdoms. 7. Augustine, (expos, prop. 72
on epist. Rom.,) Irenseus, (1. 5, c. 24;)
Chrysostom, (in Psal. cxlviii., and on the
place,) and Hieron. (epist. 53, advers. vi-
gilant.) expound it of masters, magistrates ;
so do Calvin, Beza, Pareus, Piscator, Rol-
locus, Marloratus ; so do popish writers,
Aquinas, Lyra, Hugo Cardinalis, Carthusius,
Pirerius, Toletus, Cornelius a Lapide, Sal-
meron, Estius, expound the place ; and
therefore there is no argument that royalists
hence draw against resisting of the king by
the parliaments, but they do strongly con-
clude against the cavaliers' unlawful wars
against the parliaments and estates of two
kingdoms. Here what the P. Prelate saith
to the contrary. 1. They are called emi-
nent powers ; therefore, kings only. — Ans.
It followeth not, for these can be no other
than <ravT$s oi ii vTrt^xv »**&) (1 Tim. ii. 2).
But these are not kings, but in the text con-
tradivided from jWiXs/s kings, and they can
be no other than «^«r *«i I^v^m principalities
and powers. 2. The reason of the apostle
proveth clearly that \\we\ai cannot mean
king's only, for Paul addeth of that same
\\mtrttt. " For there is no power but of God."
It must be there is no supereminent royal
power, but it is of God, and the powers only
(so he must mean) that be, are ordained of
God. Now the latter is manifestly false, for
inferior powers are of God. The powers of
the Roman senate, of a master, of a father,
are of God.
P. Prelate. — " Peter must expound Paul,
and Paul's higher powers must be (1 Pet. ii.)
^aaixCi v*ipx<»<ns More reason that Paul
expound Paul. Now (1 Tim. ii. 2) *&,rtl
U v*ipx» "T£*> All in authority are not
kings. P. Prelate. — " Are of God," or
" ordained of God," cannot so properly be
understood of subordinate powers, for that
is not by immediate derivation from God,
but immediately from the higher power the
king, and mediately from God.
Ans. 1. — It is most false that king David
is so immediately a king from God, as that
he is not also by the mediation of the people,
who made him king at Hebron. 2. The
inferior magistrates are also immediate vi-
Vatab — Homiucs intelligit publica authoritate
P. Martyr. — Varia sunt potestatutn genera — ■
rcgna, aristocratica, politica, tyrannica, oligarchica
— Deus etiam illorum author. AVillct saith the
same, and so Beza, Tolet., Hammond, &c.
174
LEX, REX ; OR,
cars and ministers of God as the king, for
their throne and judgment is not the king's,
but the Lord's (Deut. i. 16; 2 Chron. xxi.
6). 3. Though they were mediately from
man, it followeth not that they are not so
properly from God, for wisdom (Prov. viii.)
saith as properly, (ver. 16,) " By me princes
rule, and nobles, even all the judges of the
earth ;" as, (ver. 15,) " By me kings reign ;"
and promotion is as properly from God, and
not from the east and the west, (Psal. lxxv.
6, 7,) though God promote Joseph by the
thankful munificence of Pharaoh, and Mor-
decai by Ahasuerus, Daniel by Darius, as if
he gave them power and honour immediate-
ly from heaven.
P. Prelate. — Learned interpreters ex-
pound it so. — Ans. It is an untruth, for
none expound it only and principally of
kings. Produce one Interpreter for that
conceit. P. Prelate. — Paul wrote this when
Nero was monarch. — Ans. 1. Then must
the text be expounded of Nero only. 2.
He wrote this when Nero played the tyrant
and persecuted Christians, therefore we are
not to obey Neroes now. 3. He wrote it
when the senate of Rome had power to de-
clare Nero an enemy, not a father, as they
did. P. Prelate. — *', must be referred to
the antecedent Vfyvtl* l-xiix™** an<i th^i
" There is no power tl ^ but of God," must
undeniably infer there is no supreme power
but of God ; and so, sovereignty relates to
God as his immediate author, so sectaries
reason, Gal. ii. 16, " Not justified by works,
(iat ph) but by faith only." Then tl ph a-ri
reus Sm must be a perfect exclusive, else
their stronghold for justification is over-
thrown.— Ans. al hath a nearer antece-
dent, which is i&a, it is alone without
Iv'izzovff*. And this grammar is not so
good as Beza's, which he rejected. 2. i«v
fib wdl refer to God alone as the only
cause, in genere causa prima?. God alone
giveth rain, but not for that immediately,
but by the mediation of vapours and clouds.
" God alone killeth and maketh alive," Deut.
xxxii. 39, that is, excluding all strange gods,
but not immediately; for, by his people's
fighting, he slew Og, king of Bashan, and
cast out seven nations, yet they used bow
and sword, as it is used in the book of
Joshua ; and, therefore, God killed not Og
immediately. God hath an infinite, emi-
nent, transcendent way of working, so that
in his kind he only worketh his alone ; Deus
solus operatur solitudinc primes causae,
non solus solitudine omnis causa:, God only
giveth learning and wisdom, yet not imme-
diately always — often he doth it by teaching
and industry. God only maketh rich, yet
the prelates make themselves rich also with
the fat of the flock ; and God only maketh
poor, yet the P. Prelate's courts, mediately
also under God, made many men poor. 3.
Urn fin is not such an exclusive particle
when we ascribe it to God, as when we as-
cribe it to two created causes, works and faith ;
and the protestants' form of arguing (Gal.
ii.), to prove " we are justified by faith," he
calleth our stronghold, therefore it is not
his stronghold. In this point, then, he
must be a papist, and so he refuses to own
protestant strongholds for justification by
faith alone.
Dr Feme (sect. 2, p. 10). — As many as
have souls must be subject to the higher
powers spoken of here ; but all inferior
judges have souls.
Ans. — 1. If the word souls be thus
pressed, none shall be understood by higher
powers, but the king only. 2. Certainly
he that commandeth as he commandeth
must be excepted, except, because the king
hath a soul, you must subject the king to
himself and to his own commandments royal,
and so to penal laws. 3. Inferior judges,
as judges, by this text, must either be sub-
ject to themselves as judges, (and, by the
same reason, the king must be subject to
himself, as he is a judge,) or judges, as men,
or as erring men are to be subject ; which I
would grant, but they are not subject as
judges, no more than one, as he command-
eth, can also obey as he commandeth.
These are contradictory. I am not put off
that opinion since I was at school, species
subjicibilis qua subjicibilis non est prcedi-
cabilis. 4. If Nero make fathers rulers
over their mothers and chddren, and com-
mand them, by this public sword of justice,
to kill their own children and mothers, — if a
senate of such fathers disobey, and if, with
the sword, they defend their own children
and mothers, which some other Doegs, as
judges, are to kill, in the name and com-
mandment of Nero, then they, resisting
Nero's bastard commandment by this doc-
trine, resist the ordinance of God, and resist
the minister of God. I have not a faith
stretched out so far to the Prelate's court-
divinity. Yet Feme saith, " There was
never more cause to resist higher powers,
for their wicked Nero was emperor, when
THE LAW AND THE PRINCE.
he now fbrbiddeth resistance, (Rom. xiii.)
under the pain of damnation." I desire to
he informed, whether to resist the king's
servants, he to resist the king ? Dr Feme
(p. 3, sect. 2, p. 10, and part 3, sect. 9, p.
59) allows us, in unavoidable assaults where
death is imminent, personal defence without
offending, as lawful, whether the king or his
emissaries invade, without law or reason.
Well, then, the resisting of the king's cut-
throats, though they have a personal com-
mand of the king to kill the innocent, yet
if they want a legal, is no resisting of the
king, as king, for the servant hath no more
than the master giveth; but the king, in
lawless commandments, gave nothing royal to
his cut-throats, and so nothing legal.
QUESTION XXXIV.
WHETHER ROYALISTS BY COGENT REASONS
DO PROVE THE UNLAWFULNESS OF DEFEN-
SIVE WARS.
What reasons have already been dis-
cussed, I touch not.
Obj. 1. — Arniseeus (de auihorit. princip.
c. 2, n. 2). " If we are to obey our parents,
not if they be good, but simply whether
they be good or ill, (so Justin, saith of the
king, Quamvis legum contemptor, quam-
vis impius, tamen pater, sect, si vero in ff.
vos. 12,) then must we submit to wicked
kings."
Ans. — Valeat totum, we are to submit
to wicked kings and wicked parents, because
kings and parents ; but when it cometh to
actual submission, we are to submit to nei-
ther but in the Lord. The question is not
touching subjection to a prince, let him be
Nero, but if in acts of tyranny we may not
deny subjection. There be great odds be-
twixt wicked rulers and rulers commanding
or punishing unjustly.
Obj. 2 — Arnisseus (c. 3, n. 9). "We
may resist an inferior magistrate, therefore
we may resist the supreme. It followeth not ;
for an inferior judge hath a majesty in fic-
tion only, not properly : treason is, or can
only be committed against the king; the
obligation to inferior judges is only for the
prince, the person of none is sacred and in-
violable but the king's.
Ans. — We obey parents, masters, kings,
upon this formal ground, because they are
God's deputies, and set over us not by man,
but by God; so that not only are we to
obey them because what they command is
good and just, (such a sort of obedience an
equal owes to the counsel of either equal or
inferior,) but also by virtue of the fifth com-
mandment, because of their place of dignity.
Now this majesty, which is the formal rea-
son of subjection, is one and the same in
specie and nature in king and constable, and
only different gradually in the king and in
other judges ; and it is denied that there is
any incommunicable sanctity in the king's
person which is not in some degree in the
inferior judge. All proceedeth from this
false ground, that the king and inferior
judges differ in nature, which is denied ;
and treason inferior may be committed
against an inferior judge, and it is a fiction
that the inferior judge doth not resemble
God as the king doth ; yea, there is a sacred
majesty in all inferior judges, in the aged,
in every superior, wherefore they deserve
honour, fear, and reverence. Suppose there
were no king on earth, as is clear in Scrip-
ture, (Exod. xx. 12 ; Levit. xix. 32 ; Esther,
i. 20 ; Psal. cxlix. '9 ; Prov. iii. 16 ; Matt,
xiii. 57 ; Heb. v. 4 ; Isa. iii. 3 ; Lam. v.
12 ; Mai. i. 6 ; Psal. viii. 5,) and this hon-
our is but united in a special manner in the
king, because of his high place.
Obj. 3.— A king elected upon conditions
may be resisted.
Ans. — He is as essentially a king as a he-
reditary, yea, as an absolute prince, and no
less the Lord's anointed than another prince;
if then one, also another may be resisted.
Obj. 4.— The oath of God bindeth the
subjects ; therefore, they must obey, not
resist.
Ans. — Obedience and resistance are very
consistent. No doubt the people gave their
oath to Athaliah, but to her as the only
heir of the crown, they not knowing that
Joash, the lawful heir, was living ; so may
conditional oaths (all of this kind are condi-
tional) in which there is interpretative and
virtual ignorance, be broken; as the people
swear loyalty to such a man conceived to be
a father, he, after that, turneth tyrant, may
they not resist his tyranny ? They may.
Also, no doubt, Israel gave their oath of
loyalty to Jabin, (for when Nebuchadnezzar
subdued Judah, he took an oath of loyalty
of their king,) yet many of Zebulun, Naph-
tali, and Issachar, Barak leading them,
conspired against Jabin.
17<
LEX, REX I OR,
Obj. 5. — There is no law to take a king's
life if he turn a Nero, — we never read that
subjects did it.
Ans. — The treatise of unlimited preroga-
tive saith, (p. 7,) " We read not that a
father, killing his children, was killed by
them, the tact being abominable." The
law (Gen. vi. 9 ; Levit. xxiv. 16) excepteth
none. See Deut. xiii. 6, the dearest that
nature knoweth are not excepted.
Obj. 6. — Vengeance pursued Korah, Da-
than, and Abiram, who resisted Moses.
Ans. — From resisting of a lawful magis-
trate in a thing lawful, it followeth not it
must be unlawful to resist kings in tyran-
nous acts.
Obj. 7. — Exod. xxii. 28, " Thou shalt
not revile the gods, nor curse the lluler of
the people." Exod. x. 20, " Curse not
the king, no not in thy thought, nor the
rich in thy bed-chamber."
Ans. — The word elohim signifieth all
judges, and So^^D, nasi signifieth one
lifted up above the people, saith Rivetus, (in
loc.) whether a monarch, or many rulers.
All cursing of any is unlawful, even of a
private man, (Rom. xii. 14,) therefore we
may not resist a private man by this ; the
other text readeth, contemn not the king,
"nyiJDD m scientia tua. Aria Mon., or
in thy conscience or thought ; and it may
prove resisting any rich man to be unlawful.
Nothing in word or deed tending to the dis-
honour of the king may be done ; now to
resist him in self-defence, being a com-
mandment of God in the law of nature, can-
not fight with another commandment to
honour the king, no more than the fifth
commandment can fight with the sixth ; for
all resistance is against the judge, as a man
exceeding the limits of his office, in that
wherein he is resisted, not as a judge.
Obj. 8.— Eccles. viii. 3, 4, " Where the
word of a king is, there is power ; and
who may say to him, What dost thou?"
therefore, the king cannot be resisted.
Ans. — Tremelius saith well, That "the
scope is that a man go not from the king's
lawful command in passion and rebellion ;"
Vatab. — " If thou go from the king in dis-
grace, strive to be reconciled to him quickly;"
Cajetanus — " Use not kings too familiarly,
by coming too quickly to them, or going
too hastily from them ;" Plutarch, — " Cum
rege agendum ut cum rogo, neither too
near this fire nor too far off." Those have
smarted who have been too great in their
favour, — Ahasuerus slew Haman, Alexan-
der so served Clitus and Tiberius Sejaunus,
and Nero Seneca. But the sense is clear,
rebellion is forbidden, not resistance, so the
Hebrew y-| "1313 lD^H-'jX stand
not in an evil matter, or in a rebellion,
and he dehorteth from rebellion against
the king by an argument taken from his
power, for he doth whatsoever pleaseth
him. Where the word of a king is, there
is power, and who may say unto him, what
doest thou ? The meaning is, in way of
justice, he is armed with power that cannot
be resisted ; otherwise Samuel said to king
Saul, (1 Sam. xiii. 13,) " Thou hast done
foolishly." Elijah said more to Ahab then
What hast thou done ? And the prophets
were to rebuke sin in kings (2 Kings iii. 14 ;
Jer. i. 28; xxii. 3; Hosea v. 1, 2); and
though Solomon here give them a power, he
speaketh of kings as they are de facto ; but,
de jure, they are under a law (Deut. xvii.
18). If the meaning be, as royalists dream,
he doth whatsoever he will or desireth, as a
prince, by his royal, that is, his legal will, by
which he is lex animata, a breathing law,
we shall own that as truth, and it is nothing
against us ; but if the meaning be, that
de jure, as king, he doth whatsoever he
will, by the absolute supremacy of royal
will, above all law and reason, then Joram
should, by law, as king, take Elisha's head
away; and Elisha resisted God in saying,
What doth the king? and he sinned in
commanding to deal roughly with the king's
messenger, and hold him at the door ; then
the fourscore valiant priests, who said to
king Uzziah, What dost thou ? and resisted
him, in burning incense, which he desired
to do ; sinned, then Pharaoh, who said,
(Ezek. xxix. 3,) " The river Nilus is mine,
I have made it for myself; and the king of
Tyrus, (Ezek. xxvii. 2,) "I am God, I sit
in the seat of God," should not be control-
led by the prophets; and no man should
say to them, What sayest thou ? Did Cy-
rus, as a king, with a royal power from God,
and jure regio, be angry at the river Ganges,
because it drowned one of his horses, and
punish it by dividing it in one hundred and
thirty channels? (Sen. I. 3, de ira, c. 21.)
And did Xerxes, jure regio, by a royal
power given of God, when Hellespontus
had cast down his bridges, command that
three hundred whips should be inflicted on
that little sea, and that it should be cast in
fetters ? And our royalists will have these
THE LAW AND THE PRIXCE.
177
mad fools, doing these acts of blasphemous
insolence against heaven, to be honoured as
kings, and to act those acts by a regal
power. But hear flatterers, — a royal power
is the good gift of God, a lawful and just
power. A king acting and speaking as a
king, speaketh and acteth law and justice.
A power to blaspheme is not a lawful power ;
they did and spake these things with a hu-
man and a sinful will ; if, therefore, this be
the royalists' meaning, — as kings, 1. They are
absolute, and so the limited and elected
king is no king. 2. The king, as king, is
above God's law put on him by God, Deut.
xvii. 3. His will is the measure of good and
ill. 4. It were unlawful to say to the king
of Cyrus, What sayest thou ? thou art not
God, according to this vain sense of royalists.
Obj. 9. — Eliliu saith, (Job. xxxiv. 18,)
" Is it fit to say to a king, Thou art wicked,
and to princes, Ye are ungodly ?" There-
fore, you may not resist kings.
Ans. 1. — This text no more proveth that
kings should not be resisted than it proveth
that rich men, or liberal men, or other
judges inferior, should not be resisted, for
DOH} signifieth all that, and it signifieth
liberal, Isa. xxxii. 5 ; and the same word is
in ver. 8. 2. Deodatus and Calvin say, the
meaning is, " Learn from the respect that
is due to earthly princes the reverence due
to the sovereign Lord," Mai. i. 8 ; for it is
not convenient to reproach earthly kings,
and to say to a prince, Sy'/i Beliel, a
word of reproach, signifying extreme wicked-
ness. And you may not say to a man of
place, J/jyi an extremely wicked man; so
are the words taken, as signifying most vile
and wicked men, 1 Sam. ii. 12; x. 27; 2
Sam. xxv. 6 ; Psal. i. 1, 6 ; xi. 5 ; xii. 8 ;
Prov. xiv. 4 ; Psal. cxlvi. 9, and in infinite
places. For ^y^^ is.a word of extreme
reproach, coming from »^^ sine, non, and
^yt profuit, (Jud. xix. 22,).a most naughty
and a lewd man, or from ^»y jugum, a
lawless man, who hath cast off all yokes of
God's or man's laws. So then the meaning
is, It is unlawful to reproach earthly princes
and men of place, far more is it unlawful to
reproach the Judge of the whole earth with
injustice. And what then ? We may not
reproach the king, as Shimei cursed king
David ; therefore it' is unlawful to resist the
king in any tyrannous acts. I shall deny
the consequence ; nay, as Pineda observeth,
if the royalist press the words literally, it
shall not be lawful for prophets to reprove
kings of their sins. Christ called Herod a
fox, Elias Ahab, one that troubled Israel.
Obj. 10. — Acts xxiii. Paul excuseth him-
self that he called Ananias, the high-priest,
a whited wall.
Ans. — Bivetus (Exod. xxii.) learnedly
discussing the place, thinketh Paul, profess-
ing he knew him not to be the high-priest,
speaketh ironically, that he could not ac-
knowledge such a man for a judge. Pisca-
toranswereth, He could not then cite Scrip-
ture, " It is written," &c. — Ans. But they
may well insist, in that act of smiting Paul
unjustly, he might be reproached, otherwise
it is not lawful to reproach him ; and surely
it is not like that Paul was ignorant that he
was a judge ; yea, it is certain he knew him
to be a judge. 1. He appeared before him
as a judge, to answer for himself. 2. Paul
saith expressly he was a judge, (ver. 3,)
" Sittest thou to judge me after the law,"
&c. And therefore the place is for us, for
even according to the mind of all, the fault
was (if there were any) in calling him a
whited wall ; and he resisted him in judg-
ment, when he said, " Commandest thou me
to be smitten against the law ?" 3. Though
royalists rather put a fault on the apostle
Paul, (now in the act of prophesying judg-
ment against Ananias, which after fell out,)
than upon their god, the king, yet the conse-
quence amounteth but to this, We may not
revile the high-priest, therefore we may
not resist the king in his illegal command-
ments. It followeth not; yea, it should
prove, if a prelate come in open war to kill
the innocent apostle Paul, the apostle might
fly or hold his hands, but might not re-
offend. Now the prelate is the high-priest's
successor, and so Ids base person is as sacred
as the person of the Lord's anointed, the
king. Hence the cavaliers had in one of
their colours, which was taken by the Scots
at the battle of Marston, July 2, 1644,
the crown and the Prelate's mitre, painted
with these words, " Nolite tangere Christos
meos," as if the antichristian mitre were as
sacred as the lawful crown of the king of
Britain.
Obj. 11.— Feme, (sect. 9, 56,) " If the
senate and people of Borne, who a little be-
fore had the supreme government over the
then emperors, that of subjects had made
them lords, might not resist their emperors,
much less can the people of England have
power of resistance against the succession
of this crown, descending from the eon-
2b
178
LEX, REX ; OR,
queror, who by force of arms, but in justice,
conquered the kingdom.
Ans. 1. — Though the Roman emperors
were absolute, (of which I much doubt,) and
though the senate had made them absolute,
I deny that, therefore, they cannot be re-
sisted. The unlawful resistance condemned
by Paul (Rom. xiii.) is not upon the ground
of absoluteness, which is in the court of
God nothing, being never ordained of God,
but upon reasons of conscience, because the
powers are of God, and ordained of God.
But some may say, Volenti non fit injuria,
If a people totally resign their power, and
swear non-resistance to a conqueror, by com-
pact, they cannot resist. I answer, neither
doth this follow, because it is an unlawful
compact, and none is obliged to what is un-
lawful. For, (1.) It is no more lawful for
me to resign to another my power of na-
tural self-defence than I can resign my
power to defend the innocent drawn to
death, and the wives, children, and pos-
terity that God had tyed me unto. (2.) The
people can no more resign power of self-
defence, which nature hath given them,
than they can be guilty of self-murder, and
be wanting in the lawful defence of king-
dom and religion. (3.) Though you make
one their king with absoluteness of power,
yet when he use that transcendent power,
not for the safety but for the destruction of
the state, it is known they could not resign
to another that power which neither God nor
nature gave them, to wit, a power to destroy
themselves. 2. I much doubt if the Roman
emperor was absolute when Paul wrote this.
Justinian saith so, [Digest. I. 2, tit. 2,) but
he is partial in this cause. Bodine (de
repub. I. 2, c. 5, p. 221,) proveth that the
Roman emperors were but princes of the
commonwealth, and that the sovereignty re-
mained still in the senate and people. Ma-
rks Salamon. writeth six books (l)e Princi-
patu) on the contrary. How could they make
their emperors absolute ? Livy saith, " The
name of a king was contrary to a senate
liberty." Floras, Nomcn Regis invidiosum,
They instituted a yearly feast, Feb. 23, called
Regifugium. Cicero, as Augustine observ-
eth, Reg em Rornce posthcec nee Dii, nee
homines esse patiantur. The emperors
might do something de facto, but Lex Regia
was not before Vespasian's time. Augustus
took on him to be tribune of the people from
ten years to ten. Suetonius and Tacitus
say, " The succeeding kings encroached by
degrees upon the people's liberty." For
speedier execution of law, the kings in time
of war were forced to do many things with-
out the senate, and after the reign of empe-
rors, though there were no Plebiscita, yet
there were Scnatus-consulta, and one great
one is, that the senate declared Nero to be
an enemy to the state. It is thought Julius
Ctesar, in the war against Pompey, subdued
the Romans and the senate, and they were
subdued again in the battle of Octavius
against Cassius and Brutus. But Tacitus
saith that was de facto, not de jure, {Anal.
I. 1, s. 2,) Romce mere in scrvitium, Con-
sules, Patres, Eques. Caligula intended to
assume diadema, the ensign of a king, but
his friends dissuaded him. 3. England is
obliged to Dr Feme, who maketh them a
subdued nation ; the contrary of which is
known to the world.
Symmons (sect. 6, p. 19). — God is not
honoured by being resisted, no more is the
king.
Ans. — 1. I deny the consequence. Those
who resist the king's personal will, and will
not suffer him to ruin his crown and poste-
rity in following papists, against his oath at
the coronation, do honour him, and his
throne and race, as a king, though for the
time they displease him. 2. Uzziah was
not dishonoured in that he was resisted. 3.
Nor do we honour the king when we flee
from him and his law ; yet that resistance
is lawful, according to the way of royalists,
and in truth also.
Obj. 12. — Supreme power is not to be
resisted by subordinate powers, because they
are inferior to the supreme.
Ans. — 1. The bloody Irish rebels, then,
being inferior to the parliament, cannot re-
sist the parliament. 2. Inferior judges, as
judges, are immediately subordinate to God
as the king, and must be guilty of blood
before God if they use not the sword against
bloody cavaliers and Irish cut-throats, ex-
cept you say inferior judges are not obliged
to execute judgment but at the king's com-
mandment.
Obj. — As the Irish rebels are armed with
the king's power, they are superior to the
parliament.
Ans. — So an army of Turks and Spa-
niards, armed with the king's power, and
coming against the two kingdoms at the
king's commandment, though they be but
lictors in a lawless cause, are superior to the
highest courts of parliament in the two
IE LAW AND THE PRINCE.
179
kingdoms. But the king and the law gave
power to the parliament first to resist rebels,
now he giveth power to rebels to resist the
parliament. Here must be contradictory
wills and contradictory powers in the king.
Which of them is the king's will and his
power ? the former is legal and parliamen-
tary ; then, because law is not contrary to
law, the latter cannot be legal also, nor can
it be from God, and to resist it, then, is not
to resist God.
Obj. 13. — If resistance be restrained to
legal commandments, what shall we say to
these arguments, — that Paul forbiddeth re-
sistance under these tyrannous governors,
and that from the end of their government,
which is for good, and which their subjects
did in some sort enjoy under them ?
Ans. — This proveth nothing, but that
we are to co-operate with these governors,
though tyrannous, by subjecting to their
laws, so far as they come up to this end, the
moral good and peace of their government ;
but Paul nowhere commandeth absolute sub-
jection to tyrannous governors in tyrannous
acts, which is still the question.
Obj. 14. — He that hath the supreme trust
next to God, should have the greatest secu-
rity to his person and power ; but if resist-
ance be lawful, he hath a poor security.
Ans. — 1. He that hath the greatest trust
should have the greatest security to his per-
son and power in the keeping his power, and
using it according to his trust for its own
native end — for justice, peace, and godliness.
God alloweth security to no man, nor that
his angels shall guard them, but only when
they are in their ways and the service of
God; else, " there is no peace to the wicked."
2. It is denied that one man, having the
greatest trust, should have the greatest se-
curity ; the church and people of God, for
whose safety he hath the trust, as a means
for the end, should have a greater security ;
the city ought to have greater security than
the watchers, the army than the leaders, —
" The good shepherd giveth his life for his
sheep." 3. A power to do ill, without re-
sistance, is not security.
Obj. 15. — If God appoint ministers to
preach, then the sheep cannot seek safety
elsewhere.
Ans. — The wife is obliged to bed and
board with her husband, but not if she fear
lie will kill her in the bed. The obedience
of positive duties that subjects owe to princes
cannot loose them from nature's law of self- '
preservation, nor from God's law of defending
religion against papists in arms, nor are the
sheep obliged to entrust themselves but to a
saving shepherd.
Obj. 16. — If self-defence, and that by
taking up arms against the king, be an un-
lawful duty, how is it that you have no prac-
tice, no precept, no promise for it, in all the
word of God ? 1 . You have no practice :
Ahab sold himself to do evil, — he was an
idolater, — and killed the prophets ; and his
queen, a bloody idolatress, stirred him up to
great wickedness. Elias had as great power
with the people as you have, yet he never
stirred up the people to take arms against
the king. Why did God at this time rather
use extraordinary means of saving his church ?
Arnisseus, (de autho. princ. c. 8,) — " Elias
only fled. Nebuchadnezzar, Ahab, Manas-
seh, and Julian, were tyrants and idolaters,
yet the people never raised an army against
them." Bishop Williams of Ossory, (Deut.
xiv.,) " If brother, son, daughter, wife, or
friend, entice thee to follow strange gods, kill
them ; not a word of the father. Children
are to love their fathers, not to kill them."
" Christ (saith John P. P.), in the cradle,
taught by practice to flee from Herod ; and
all Christ's acts and sufferings are full of my-
steries and our instructions. He might have
had legions of angels to defend him, but would
rather work a miracle, in curing Malchus'
ear, as use the sword against Ca:sar. If
sectaries give us a new creed, it will concern
them never with expunging Christ's descent
into hell, and the communion of saints, to
raze out this, He suffered under Pontius
Pilate. My resolution is (for this sin of
yours) to dissolve in tears and prayers, and,
with my master, say, daily and hourly, Fa-
ther, forgive them, &c. Christ thought it
an uncouth spirit to call for fire from hea-
ven to burn the Samaritans, because they re-
fused him lodging. The prophets cried out
against idolatry, blasphemy, murder, adul-
tery, &c, and all sins ; never against the sin
of neglect, and murderous omission to de-
fend church and religion against a tyran-
nous king. No promise is made to such a
rebellious insurrection in God's word."
Ans. It is a great non-consequence : this
duty is not practised by any examples in
God's word, therefore it is no duty. Prac-
tice in Scripture is a narrow rule of faith.
Show a practice when a husband stoned his
wife, because she enticed him to follow strange
gods ; yet it is commanded, (Deut. xiii. 6,)
180
when a man lying with a beast is put to
death ; yet it is a law (Exod. xxii. 19). In-
finite more laws are, the practice of which
we find not in Scripture. 2. Jehu and the
elders of Israel rooted out Ahah's posterity
for their idolatry ; and if Jehu, out of sin-
cerity, and for the zeal of God, had done
what God commanded, he should have been
rewarded ; for, say that it was extraordinary
to Jehu that he should kill Ahab, yet there
was an express law for it, that he that stir-
reth up others to idolatry should die the
death (Deut. xiii. 6) ; and there is no ex-
ception of king or father in the law ; and to
except father or mother in God's matter, is
expressly against the zeal of God (Deut.
xxxii. 9). And many grave divines think
the people to be commended in making Jehu
king, and in killing kingNabab, and smit-
ing all the house of Jeroboam for his idola-
try ; they did that which was a part of their
ordinary duty, according to God's express
law (Deut. xiii. 6 — 9), though the facts of
these men be extraordinary. 3. Ahab and
Jezebel raised not an army of idolaters and
malignants, such as are papists, prelates, and
cavaliers, against the three estates, to destroy
parliaments, laws, and religion — and the peo-
ple conspired with Ahab in the persecution
and idolatry, to forsake the covenant, throw
down the altars of God, and slay his pro-
phets— so as in the estimation of Elias, (1
King xix. 9 — 11,) there was not one man,
but they were malignant cavaliers ; and hath
any Elias now power with the cavaliers, to
exhort them to rise in arms against them-
selves, and to show them it is their duty to
make war against the king and themselves,
in the defence of religion ? When the pro-
phets had much ado to convince the people
that they sinned in joining with the king,
what place was there to show them their
sin, in not using their own lawful defence ?
And in reason, any may judge it unreason-
able for Elias to exhort, of thousands of
thousands in Israel, poor seven thousand
(of which many no doubt were women, aged,
weak, and young,) to rise in arms against
Ahab and all Israel, except God had given
a positive and extraordinary commandment,
and with all miraculous courage and strength
in war against the whole land. And God
worketh not always by miracles to save his
church, and therefore the natural mandate
of self-preservation in that case doth no
more oblige a few weak ones to lawful resis-
tance than it obliged one martyr to rise
against a persecuting Nero and all his forces.
Amisseus should remember we are not to
tie our Lord to miracles.
1. Elias did not only flee, but denounced
wrath against the king and cavaliers who
joined with them in idolatry; and when
God gave opportunity, he showed himself,
and stirred the people up to kill Baal's Jesu-
its and seducing idolators, when the idola-
trous king refused to do it ; and Elias with
his own hand took them not, but all Israel
being gathered together, (1 Kings xviii. 19,)
the princes and judges did apprehend them,
(ver. 40,) which is a warrant, when the king
refuseth to draw the sword of justice against
armed papists, that other judges are to do
it. 2. Eor Jeremiah, from the Lord, ex-
pressly forbade to fight against Nebuchad-
nezzar, show us the like for not defend-
ing ourselves against bloody papists and Irish
cut-throats ; for that example may as well
prove, (if it be a binding law to us,) that our
king should not raise his subjects to fight
against a Spanish armada and a foreign
prince ; for before ever Nebuchadnezzar
subdued the kingdom of Judah, (Jer. xxvii.
1,) in the beginning of the reign of Jehoi-
akim, (Jer. xxxvi. and xxxvii.,) the king of
Judah is from the Lord commanded not to
draw a sword against the king of Babylon.
I hope this will not tie us and our king
not to fight against foreign princes, or against
the great Turk, if they shall unjustly invade
us and our king ; and this example is against
the king's resisting of a foreign prince un-
justly invading him, as much as against us,
for Nebuchadnezzar was a tyrannous invader,
and the king of Judah the Lord's anointed.
3. The people also conspired with Manasseh,
as with Ahab. (Jer. xv. 4). 4. Of empe-
rors persecuting Christians we shall hear
anon. 5. Deut. xiii., None are excepted,
by a synecdoche, the dearest are expressed,
" son, daughter, brother, the friend that is
as thine own soul;" therefore fathers also;
" and husbands are to love their wives"
(Ephes. v. 25) ; yet to execute judgment
on them without pity (Deut. xiii. 8, 9) ;
the father is to love the son, yet if the son
prophecy falsely in the name of the Lord, to
kill him. (Zech. xiii. 3.) Hence love, fear,
reverence toward the king, may be com-
manded, and defensive wars also. 6. Christ
fled from Herod, and all his actions and
sufferings are mysteries and instructions,
saith the poor Prelate. Christ kissed the
man that, to his knowledge, came to betray
THE LAW AND THE PRINCE.
181
him ; Christ fled not, but knowing where
and when his enemy should apprehend him,
came willingly to the place ; therefore we
should not flee. His actions are so myste-
rious that John P. P., in imitation of Christ's
forty days' fast, will fast from flesh in Lent,
and the Prelate must walk on the sea and
work miracles, if all Christ's actions be our
instructions. 7- He might, with more than
twelve legions of angels, defend himself, but
he would not, not because resistance was un-
lawful— no shadow for that in the text —
but because it was God's will that he should
drink the cup his Father gave him, and be-
cause to take the sword without God's war-
rant, subjecteth the usurper of God's place
to perish with the sword. Peter had God's
revealed will that Christ behoved to suffer,
(Matt. xxvi. 52, 53; xvi. 21—23,) and
God's positive command, that Christ should
die for sinners, (John x. 24,) may well re-
strain an act of lawful self-preservation, hie
et nunc, and such an act as Christ lawfully
used at another time. (Luke iv. 29, 30 ;
John xi. 7, 8.) We give no new creed ; but
tins apostate hath forsaken his old creed,
and the religion of the Church of Scotland,
in which he was baptized. Nor do we ex-
punge out of the creed Christ's descension
into hell and the communion of saints, as the
apostate saith ; but the popish local descen-
sion of Christ, and the popish advancing of
the church's power above the Scriptures,
and the intercession and prayers to the
saints, or of the saints for us, we deny ; and
this Prelate, though he did swear the doc-
trine of the Church of Scotland, preached
expressly all these, and many other points
of popery, in the pulpits of Edinburgh. 10.
We believe that Christ suffered under Pon-
tius Pilate, but that Pilate had any legal
power to condemn Christ — but only a power
by a permissive decree, (Acts iv. 27, 28,)
such as devils had by God's permission,
(Luke xxii. 53,) — we utterly deny. 11.
The Prelate saith it is his resolution, for our
sin of natural self-defence, to dissolve in
tears; because his bishopric, I conceive, by
which he was wont to dissolve in cups, (being-
drunk on the Lord's day, after he, with other
prelates, had been at the Lord's supper,
while the chamber, wherein they were, was
dissolved in vomiting,) was taken from him.
12. The prophets cry against all sins, but
never against the sin of non-resistance ; and
yet they had very tyrannous and idolatrous
kings. This is but a weak argument. 1.
The prophets cry not out against all sins —
they cry not out against men-stealers, and
killers of father and mother, in express
terms, yet do they, by consequence, con-
demn all these sins ; and so do they condemn
non-resistance in wars, by consequence, when
they cry out, (Jer. v. 31,) "The prophets
prophesy falsely, and the priests bear rule
by their means, and my people love to have
it so." And when they complain (Ezek. xxii.
26 — 28), " That the prophets and priests
violate the law, her princes are like wolves
ravening the prey, to shed blood, and the
people use oppression, and exercise robbery,
and vex the poor ;" and when they say,
(Jer. xxii. 2,) not to the king only, but
also to his servants, and the people that en-
ter in by the gates, " Execute judgment and
righteousness, and deliver the spoiled out
of the hand of the oppressor," — I pray you,
who are the oppressors ? I answer, The
murdering judges. (Isa. i. 21.) " As for
my people, children are their oppressors,
and women rule over them," (Isa. iii. 12,)
and, (ver. 14, 15,) " the ancients of the
people grind the laces of the poor ;" and
when they are not valiant for the truth
upon the earth ; and (Prov. xxiv. 11) the
Lord shall render to these men according
to their works, which forbear to help men
that are drawn to death, and those that be
ready to be slain ; if they shift the business,
and say, Behold, we know not, doth not
he that pondereth the heart consider it ?
When, therefore, the Lord's prophets com-
plain that the people execute not judgment,
relieve not the oppressed, help not and
rescue not those that are drawn to death
unjustly by the king, or his murdering
judges, they expressly cry out against the
sin of non-resistance. 2. The prophets can-
not expressly and formally cry out against
the judges for non-resisting the king, when
they join, as ravening wolves, with the king
in these same acts of oppression, even as the
judge cannot formally impannel twenty-four
men, sent out to guard the travellers from
an arch-robber, if these men join with the
robber, and rob the travellers, and become
cut-throats, as the arch-robber is, he cannot
accuse them for their omission in not guard-
ing the innocent travellers, but for a more
heinous crime, that not only they omitted
what was their duty, in that they did not
rescue the oppressed out of the hands of the
wicked, but because they did rob and mur-
der ; and so the lesser sin is swallowed up
182
LEX, REX ; OR,
in the greater. The under-judges are watch-
men, and a guard to the church of God ; if
the king turn a bosom robber, their part is,
(Jer. xxii. 3,) " To deliver the spoiled out of
the hand of the oppressor," to watch against
domestic and foreign enemies, and to defend
the flock from wolves ; " To let the oppress-
ed go free, and to break every yoke," (Isa.
lviii. 6,) " To break the jaws of the wicked,
and pluck the spoil out of his teeth." (Job.
xxix. 17.) Now if these judges turn lions
and ravening wolves, to prey upon the flock,
and join with the king, as always they did
when the king was an oppressor, " his princes
made him glad with their lies," and joined
with him, and the people with both, (Jer. i.
18 ; v. 1 ; ix. 1 ; Mic. vii. 1 ; Ezek. xxii.
24 — 31 ; Jer. xv. 1 — 3,) it is no wonder if
the prophets condemn and cry out against
the hugest and most bloody crime of positive
oppression, formally and expressly, and in
that their negative murders, in not relieving
the oppressed, must also be cried out against.
13. The whole land cannot formally be ac-
cused for non-resistance when the whole
land are oppressors, for then they should be
accused for not resisting themselves. 14.
The king ought to resist the inferior judges
in their oppression of the people, by the
confession of royalists, then this argument
cometh with the like force of strength on
themselves. Let them show us practice, pre-
cept, or promise in the Word, where the
king raised an army for defence of religion,
against princes and people who were sub-
verting religion, and we shall make use of
that same place of Scripture to prove that
the estates and people, who are above the
king, (as I have proved,) and made the
king, may, and ought to resist the king,
with the like force of scriptural truth in
the like ease. 15. Royalists desire the like
precedent of practice and precept for defen-
sive wars ; but, I answer, let them show us
a practice where any king of Israel or Ju-
dah raised an army of malignants, of Phil-
istines, Sidonians, or Ammonites, against
the princes of Israel and Judah, convened
in an assembly to take course for bringing
home the captived ark of God, and vindi-
cating the laws of the land, and raised an
army contrary to the knowledge of the
elders, princes, and judges, to set up Dagon,
or tolerate the worship of the Sidoniangods;
and yet princes, elders, judges, and the whole
people, were obliged all to flee out of God's
land, or then only to weep and request that
the king would not destroy souls and bodies
of them and their innocent posterities, be-
cause they could not, in conscience, embrace
the worship of Dagon and the Sidonian gods.
When the royalists can parallel this with a
precedent, we can answer, There was as small
apparency of precedency in Scripture, (ex-
cept you flee to the law of nature,) that
eighty priests, the subjects of king Uzziah,
should put in execution a penal law against
the Lord's anointed, and that the inferiors
and subjects should resist the superior, and
that 'these priests, with the princes of the
land, should remove the king from actual
government, all his days, and crown his son,
at least make the father, their prince and
superior, (as royalist say,) as good as a cy-
pher ? Is not this a punishment inflicted by
inferiors upon a superior, accoi'ding to the
way of royalists ? Now it is clear, a worship-
ping of bread and the mass commanded,
and against law obtruded upon Scotland,
by influence of the counsel of known papists,
is to us, and in itself, as abominable as the
worshipping of Dagon or the Sidonian gods ;
and when the kingdom of Scotland did but
convene, supplicate, and protest against that
obtruded idolatry, they were first declared
rebels by the king, and then an army raised
against them by prelates and malignants,
inspired with the spirit of antichrist, to de-
stroy the whole land, if they should not sub-
mit, soul and conscience, to that wicked ser-
QUESTION XXXV.
WHETHER OR NO THE SUFFERINGS OF THE
MARTYRS IN THE PRIMITIVE CHURCH MI-
LITATE AGAINST THE LAWFULNESS OF DE-
FENSIVE WARS.
Obj. 1 . — Royalists think they burden our
cause much with hatred, when they bring
the fathers and ancient martyrs against us ;
so the P. Prelate (p. 74 — 76,) extracted
out of other authors testimonies for this,
and from I. Armagh, in a sermon on Rom.
xiii. (p. 20, 21 ); so the doctors of Aber-
deen. The Prelate provcth from Clem.
Alexand. (1. 7, c. 17) that the king is
constituted by the Lord ; so Ignatius.
Ans. 1. — Except he prove from these
fathers that the king is from God only and
immediately, he proveth nothing.
THE LAW AND THE PRINCE.
183
Obj. 2.— Iren. (1. 5, adv. hcer. c, 20).—
proveth that God giveth kingdoms, and
that the devil lied, Luke iv. ; and we make
the people to make kings, and so to be the
children of the devil.
Ans. — If we denied God to dispose of
kingdoms, this man might allege the church
of God in England and Scotland to be the
sons of Satan ; but God's word, in Deut.
xvii. 18, and many other places, makes the
people to make kings, and yet not devils.
But to say that prelates should crown kings,
and with their foul fingers anoint him, and
that as the Pope's substitute, is to make him
that is the son of perdition a donor of
kingdoms; also to make a man, with his
bloody sword, to ascend to a throne, is to
deny God to be the disposer of kingdoms ;
and prelates teach both these.
Obj. 3.— Tertul. (Apol. c. 30).— hide
est imperator, undc et homo, antequam im-
perator, hide potestas illi, unde et spiritus,
God is no less the creator of sovereignty than
of the soul of man.
Ans. — God only maketh kings by his ab-
solute sovereignty, as he only maketh high
and low, and so only he maketh mayors,
provosts, bailiffs, for there is no power but
of him, (Rom xiii.,) therefore provosts and
bailiffs are not from men. The reader shall
not be troubled with the rest of the testimo-
nies of this poor plagiary, for they prove
what never man denied but prelates and
royalists, to wit, that kings are not from
God's approving and regulating will, which
they oppose, when they say, Sole conquest is
a just title to the crown.
But they deserve rather an answer which
Grotius, Barclay, Arnisseus, and Spalato,
allege, as, —
Obj. 1 — Cyprian (epist, 1). — Non est fas
Christianis, armis, ac vi tueri se adversus
impetum persecutorum, Christians cannot,
by violence, defend themsehres against per-
secutors.
Ans. — If these words be pressed literally,
it were not lawful to defend ourselves against
murderers ; but Cyprian is expressly con-
demning in that place the seditious tumults
of people against the lawful magistrate.
Obj. 2. — The ancients say he was justly
punished who did rend and tear the edict
of Dioclesian and Maximinus {Euseb. I. 7,
Hist. Ecclcs. c. 5).
Ans. — To rend an edict is no act of na-
tural self-defence, but a breach of a positive
commandment of the emperor's, and could
not be lawfully done, especially by a private
man.
Obj. 3. — Cyprian (epist. 56) Incumbamus
gemitibus assiduis et deprecationibvs crc-
bris, hcec enim sunt munimenta spiritualia
et tela divina quce protcgunt ; and Ruffi-
nus, (1. 2, c. 6,) Ambrosius adversus regince
(Justince Arlnoz) furorcm non se manu
defensabat aut tclo, sed jejitniis continua-
tisque vigiliis sub altari positus.
Ans. — It is true, Cyprian reputed prayers
his armour, but not his only armour. Though
Ambrose, de facto, used no other against
Justina, the places say nothing against the
lawfulness of self-defence. Ambrose speak-
eth of that armour and these means of de-
fence that are proper to pastors, and these
are prayers and tears, not the sword ; be-
cause pastors carry the ark, that is their
charge, not the sword, that is the magis-
trate's place.
Obj. 4. — Tertullian (apolog. c. 37) saith
expressly, that the Christians might, for
strength and number, have defended them-
selves against their persecutors, but thought
it unlawful. Quanclo vcl una nox pauculis
faculis largitatcm ultionis poss et operari,
si malum malo dispungi penes nos liceret,
sed absit ut igni humano vindicctur divina
secta, aut doleat pati, in quo probctur. Si
enim hostes extraneos, non tantum vindiccs
occultos agere vcllemus, deesset nobis vis
numcrorum et copiarum ?
Ans. — I will not go about to say that
Tertullian thought it lawful to raise arms
against the emperor : I ingenuously confess
Tertullian was in that error. But, 1 . some-
thing of the man; 2. Of the Christians. 1.
Of the man — Tertullian after this turned a
Montanist. 2. Pamelius saith of him, in vit.
Tertul. inter Apocrypha numcratur — cx-
communicatus. 3. It was Tertullian's error
in a fact, not in a question, that he believed
Christians were so numerous as that they
might have fought with the emperors. 4.
M. Pryn doth judiciously observe, (part 3,
Sovereign Power of Pari. p. 139, 140,) he
not only thought it unlawful to resist, but
also to flee, and therefore wrote a book de
fuga; and therefore as some men are ex-
cessive in doing for Christ, so also in suffering
for Christ. Hence I infer, that Tertullian
is neither ours nor theirs in this point ; and
we can cite Tertullian against them also,
Jam sumus ergo pares ; yea, Fox, in his
Monum., saith, " Christians ran to the
stakes to be burnt, when they were nei-
184
LEX, REX ; OR,
ther condemned nor cited." 5. What if we
cite Theodoret, (fol. 98. De provid.) " Who,
about that time, say that evil men reign
a^o^svwv a.vxv\i*, through the cowardliness
of the subjects ;" as the Prelate saith of
Tertullian, I turn it, If Theodoret were now
living he would go for a rebel. 1. About
that time Christians sought help from Con-
stantine the Great against Lycinius their
emperor, and overthrew him in battle ; and
the Christians, being oppressed by the king
of Persia their own king, sent to Theodosius
to help them against him. 2. For the man,
Tertullian, in the place cited, saith, " The
Christians were strangers under the empe-
ror," externi sumus, and therefore they
had no laws of their own, but were under
the civil laws of heathen till Constantine's
time ; and they had sworn to Julian, as his
soldiers, and therefore might have, and no
doubt had, scruples of conscience to resist
the emperor. 3. It is known Julian had
huge numbers of heathen in his army, and
to resist had been great danger. 4. Want-
ing leaders and commanders, (many prime
men doubting of the lawfulness thereof,)
though they had been equal in number, yet
number is not all in war, skill in valorous
commanders is required. 5. What if all
Christians were not of Tertullian's mind. 6.
If I would go to human testimonies, which
I judge not satisfactory to the conscience, I
might cite many : the practice of France, of
Holland, the divines in Luther's time, (Slei-
dan. 8, c. 8, 22,) resolved resistance to be
lawful; Calvin, Beza, Pareus, the German
divines, Buchanan, and an host might be
produced.
QUESTION XXXVI.
WHETHER THE POWER OF WAR BE ONLY IN
THE KING.
It is not hard to determine this question.
The sword in a constitute commonwealth is
given to the judge supreme or subordinate ;
(Rom. xiii. 4;) "He beareth not the sword in
vain" in the empire. The use of armour is
restricted to the emperor by a positive law ;
so the law saith, Armorum officio, nisijussu
principis sunt interdicta, {lib. de Cod. de
Lege. 1.) Imperat Valentinian nulli, nobis
inconsultis, usus armorum tribuatur, (ad
1. Jul. Mai. I. 3.) War is a species and a
pai-ticular, the sword is a general.
Assert. — 1. The power of the sword, by
God's law, is not proper and peculiar to the
king only, but given by God to the inferior
judges. 1. Because the inferior judge is essen-
tially a judge no less than the king, as is
proved, therefore he must bear the sword.
(Rom. xiii. 4.) 2. Not Moses only, but the
congregation of Israel, had power of life and
death, and so of the sword ; Num. xxxv. 12,
the man-slayer shall not die, " until he stand
before the congregation in judgment;" ver.
24, " Then the congregation shall judge
between the slayer and the avenger of
blood;" Deut. xxii. 18, " The elders of the
city shall take that man and chastise him ;"
ver. 21, " The men of the city shall stone her
with stones ;" Deut. xvii. 5 ; xix. 12, 13, v.
18—21; xxi. 19, " Then shall his father
and his mother bring him to the elders of
his city ;" ver. 21, " And the men of the city
shall stone him with stones ;" 1 Kings xxi.
11, The elders and nobles that were inha-
bitants in his city stoned Naboth. 3. In-
ferior judges are condemned as murderers,
who have shed innocent blood, (Isa. i. 12 ;
Psal. xciv. 5, 6 ; Jer. xxii. 3 ; Ezek. xxii.
12, 27; Hosea vi. 8; Zeph. iii. 1—3,)
therefore, they must have the power of the
sword, hence, upon the same grounds.
Assert. 2. — That the king only hath the
power of war, and raising armies must be
but a positive civd law. For, 1. By divine
right, if the inferior judges have the sword
given to them of God, then have they also
power of war, and raising armies. 2. All power
of war that the king hath is cumulative, not
privative, and not destructive, but given for
the safety of the kingdom ; as therefore the
king cannot take from one particular man
the power of the sword for natural self-pre-
servation, because it is the birthright of life,
neither can the king take from a com-
munity and kingdom a power of rising in
arms for their own defence. If an army of
Turks shall suddenly invade the land, and
the king's express consent cannot be had,
(for it is essentially involved in the office of
the king, as king, that all the power of the
sword that he hath be for their safety,) or if
the king should, as a man, refuse his con-
sent, and interdict and discharge the land to
rise in arms, yet they have his royal con-
sent, though they want his personal consent,
in respect that his office obligeth him to
command them to rise in arms. 3. Because
no king, no civil power can take away
nature's birthright of self-defence from any
THE I. AW AND THE PRINCE.
183
man, or a community of men. 4. Because
if a king should sell his kingdom, and invito
a bloody conqueror to come in with an army
of men to destroy his people, impose upon
their conscience an idolatrous religion, they
may lawfully rise against that army without
the king's consent ; for, though royalists say,
they need not come in asinine patience, and
offer their throats to cut-throats, but may
flee, yet several things hindereth a flight.
1. They are obliged by virtue of the fifth
commandment to remain, and, with their
sword, defend the cities of the Lord and the
king (2 Sam. x. 12 ; 1 Chron. xix. 13) ;
for if to defend our country and children,
and the church of God, from unjust invaders
and cut-throats, by the sword, be an act of
charity that God and the law of nature
requireth of a people, as is evident, (Prov.
xxiv. 11,) and if the fifth commandment
oblige the land to defend their aged parents
and young children from these invaders, and
if the sixth commandment lay on us the
like bond, all the land are to act works of
mercy and charity, though the king unjustly
command the contrary, except, royalists say,
that we are not to perform the duties of the
second table commanded by God, if an
earthly king forbid us ; and if we exercise
not acts of mercy towards our brethren,
when their life is in hazard, to save them,
we are murderers ; and so men may murder
their neighbour if the king command them
so to do ; this is like the court-faith. 2. The
king's power of wars is for the safety of his
people ; if he deny his consent to their
raising of arms till they be destroyed, he
playeth the tyrant, not the king, and the
law of nature will necessitate them either to
defend themselves, (seeing flight of all in
that case is harder than death,) else they
must be guilty of self-murder. Now, the
king's commandment of not rising in arms,
at best, is positive and against the nature of
his office, and it floweth then from him as
from a man, and so must be far inferior to
the natural commandment of God, which
commandeth self-preservation, if we would
not be guilty of self-murder, and of obeying
men rather than God ; so Althusius (Polit.
c. 25, n. 9), Halicarnas. (1. 4, Antiq. Rom.),
Aristot. (Polit. 1. 3, c. 3). 3. David took
Goliath's sword and became a captain, a
captain to an host of armed men in the
battle, and fought the battles of the Lord,
(1 Sam. xxv. 28,) and this Abigail by the
spirit of prophecy, as I take it, saith, (ver.
29—31; 1 Sam. xxii. 2; 1 Chron. xii.
1 — 3 ; Xvii. 18, 21, 22,) not only without
Saul's consent, but against king Saul, as he
was a man, but not against him as he was
king of Israel. 4. If there be no king, or
the king be minor, or an usurper, as Athaliah,
be on the throne, the kingdom may law-
fully make war without the king, as (Judg.
xx.) the children of Israel, — four hundred
thousand footmen that drew sword, went out
to war against the children of Benjamin.
Judah had the power of the sword when
Josiah was but eight years old, in the be-
ginning of his reign, (2 Kings xxii. 1, 2,)
and before Jehoash was crowned king, and
while he was minor, (2 Kings xi.,) there
were captains of hundreds in arms raised
by Jehoiada, and the people of Judah, to
defend the young king. It cannot be said
that this is more extraordinary than that
it is extraordinary for kings to die, and
in the interregnum, wars, in an ordinary
providence, may fall out in these kingdoms,
where kings go by election ; and for kings
to fall to be minors, captives, tyrannous.
And I shall be of that opinion that Mr Sym-
mons, who holdeth that royal birth is equi-
valent to divine unction, must also hold, that
election is not equivalent to divine unction ;
for both election and birth cannot be of the
same validity, the one being natural, the
other a matter of free choice, which shall in-
fer that kings by election are less properly,
and analogically only, kings ; and so Saul
was not properly a king, for he was king by
election ; but I conceive that rather kings
by birth must be less properly kings, because
the first king by God's institution, being the
mould of all the rest, was by election (Deut.
xvii. 18—20).
5. If the estates create the king, and
make this man king, not that man, (as is
clear from Deut. xvii. 18, and 2 Chron. v.
1 — 4,) they give to him the power of the
sword, and the power of war, and the mili-
tia ; and I shall judge it strange and reason-
less, that the power given to the king, by the
parliament or estates of a free kingdom,
(such as Scotland is acknowledged by all to
be,) should create, regulate, limit, abridge,
yea, and annul that power that created itself.
Hath God ordained a parliamentary power
to create a royal power of the sword and
war, to be placed in the king, the parlia-
ment's creature, for the safety of parliament
and kingdom, which yet is destructive of it-
self? Dr Feme saith that " the kina sum-
186
LEX, REX ; OR,
moneth a parliament, and giveth them power
to be a parliament, and to advise and coun-
sel him ;" and, in the meantime, Scripture
saith (Deut. xvii. 18—20 ; 1 Sam. x. 20—
25 ; 2 Sam. v. 1 — 4) that the parliament
createth the king. Here is admirable reci-
procation of creation in policy ! Shall God
make the mother to destroy the daughter ?
The parliamentary power that giveth crown,
militia, sword, and all to the king, must give
power to the king to use sword and war for
the destruction of the kingdom, and to an-
nul all the power of parliaments, to make,
unmake parliaments, and all parliamentary
power. What more absurd ?
Obj. 1. — (Symmons, p. §7). These
phrases, (1 Sam. ix. 1,) " When kings go
forth to war," and (Luke xiv. 31) " What
king going forth to war," speak to my con-
science, that both offensive and defensive war
are in the king's hand.
Ans. — It is not mueh to other men what
is spoken to any man's conscience by phrase
and customs; for by this no states, where there
be no kings, but government by the best, or
the people, as in Holland, or in other na-
tions, can have power of war ; for what time
of year shall kings go to war who are not
kings? and because Christ saith, " A cer-
tain householder delivered talents to his
servants," will this infer to any conscience,
that none but a householder may take usury ?
And when he saith, " If the good man of
the house knew at what hour the thief
would come, he would watch ;" shall it fol-
low the son or servant may not watch the
house, but only the good man ?
Obj. 2.— (Feme, p. 95.) The natural
body cannot move but upon natural prin-
ciples ; and so neither can the politic body
move in war, but upon politic reasons from
the prince, which must direct by law.
Ans. 1. — This may well be retorted, the
politic head cannot then move but upon
politic reasons ; and so the king cannot
move to wars but by the law, and that is
by consent of Parliament; and no law can
principle the head to destroy the members.
2. If an army of cut-throats rise to destroy
the kingdom, because the king is behind in
his place in doing his duty, how can the
other judges, the states and parliament, be
accessory to murder committed by them in
not raising armies to suppress such robbers ?
Shall the inferior judges be guilty of in-
nocent blood because the king will not do
his duty ? 3. The politic body ceaseth no
more to renounce the principles of sinless
nature in self-defence, because it is a politic
body, and subject to a king, than it can
leave off to sleep, eat, and drink; and there
is more need of politic principles to the one
than the other. 4. The parliaments and
estates of both kingdoms move in these
wars by the king's laws, and are a formal
politic body in themselves.
Obj. 2. — The ground of the present wars
against the king, saith Dr Feme, (sect. 4,
p. 13,) is false, to wit, that the parliament
is co-ordinate with the king; but so the king
shall not be supreme, the parliament's con-
sent is required to an act of supremacy, but
not to a denial of that act. And there can
no more (saith Arnisaeus, de jure majes-
tatis, c. 3 ; in quo consistat essen. majest.
c. 3, n. 1 ; and an jur. majest. separ., fyc.
c. 2, n. 2) be two equal and co-ordinate
supreme powers than there can be two su-
preme Gods; and multitudo deorum est
nullitas deorum, many gods infer no gods.
Ans. 1. — If we consider the fountain-
power, the king is subordinate to the par-
liament, and not co-ordinate ; for the con-
stituent is above that which is constituted.
If we regard the derived and executive
power in parliamentary acts, they make
but a total and complete sovereign power ;
yet so as the sovereign power of the parlia-
ment, being habitually and underived a
prime and fountain-power, (for I do not
here separate people and parliament,) is per-
fect without the king, for all parliamentary
acts, as is clear, in that the parliament make
kings, make laws, and raise armies, when
either the king is minor, captived, tyran-
nous, or dead ; but royal power parliamen-
tary without the parliament, is null, be-
cause it is essentially but a part of the par-
liament, and can work nothing separated
from the parliament, no more than a hand
cut off from the body can write ; and so
here we see two supremes co-ordinate.
Amongst infinite things there cannot be
two, because it involveth a contradiction,
that an infinite thing can be created, for
then it should it be finite ; but a royal
power is essentially a derived and created
power and supreme, secundum quid, only
in relation to single men, but not in rela-
tion to the community ; it is always a crea-
ture of the community, with leave of the
royalist. 2. It is false, that to an act of
parliamentary supremacy the consent of the
king is required, for it is repugnant that
THE LAW AND THE PRINCE.
187
there can be any parliamentary judicial act
without the parliament, but there may be
without the king. 3. More false it is, that
the king hath a negative voice in parliament ;
then he shall be sole judge, and the par-
liament, the king's creator and constituent,
shall be a cypher.
06/'. 3. — (Arnisseus, de jur. maj. de po-
test, armorum, c. 5, n. 4.) The people are
mad and furious, therefore supreme majesty
cannot be secured, and rebels suppressed,
and public peace kept, if the power of ar-
mour be not in the king's hand only.
Ans. 1. — To denude the people of armour,
because they may abuse the prince, is to
expose them to violence and oppression, un-
justly; for one king may more easily abuse
armour than all the people ; one man may
more easily fail than a community. 2. The
safety of the people is far to be preferred
before the safety of one man, though he
were two emperors, one in the east, an-
other in the west, because the emperor is
ordained of God for the good and safety of
the people. (1 Tim. ii. 2.) 3. There can be
no inferior judges to bear the sword, as
God requireth, (Rom. xiii. 4 ; Deut. i. 15,
16 ; Chron. xix. 6, 7,) and the king must
be sole judge, if he only have the sword,
and all armour monopolised to himself.
Obj. 4. — The causes of war, saith Mr
Symmons, (sect. 4, p. 9,) should not be
made known to the subjects, who are to
look more to the lawful call to war from
the prince than to the cause of the war.
Ans. 1. — The parliament and all the
judges and nobles are subjects to royalists,
if they should make war and shed blood
upon blind obedience to the king, not in-
quiring either in causes of law or tact, they
must resign their consciences to the king.
2. The king cannot make unlawful war to
be lawful by any authority royal, except he
could rase out the sixth commandment;
therefore subjects must look more to the
causes of war than to the authority of the
king; and this were a fair way to make
parhaments of both kingdoms set up popery
by the sword, and root out the reformed
religion upon the king's authority, as the
lawful call to war, not looking to the causes
of war.
QUESTION XXXVII.
WHETHER OR NO IT BE LAWFUL THAT THE
ESTATES OF SCOTLAND HELP THEIR OP-
PRESSED BRETHREN, THE PARLIAMENT AND
PROTESTANTS IN ENGLAND, AGAINST PA-
PISTS AND PRELATES NOW IN ARMS
AGAINST THEM, AND KILLING THEM, AND
ENDEAVOURING THE ESTABLISHMENT OF
POPERY, THOUGH THE KING OF SCOTLAND
SHOULD INHIBIT THEM.
1. Marianus saith, one is obliged to help
his brother, non vinculo ejicaci, not with
any efficacious band ; because in these,
(saith he,) non est actio aut poena, one
may not have action of law against his
brother, who refused to help him ; yet,
(saith he) as man he is obliged to man,
nexu civilis societatis, by the bond of human
society.
2. Others say, one nation may indirectly
defend a neighbour nation against a com-
mon enemy, because it is a seli-defence ; and
it is presumed that a foreign enemy, having
overcome the neighbour nation, shall in-
vade that nation itself who denieth help
and succour to the neighbour nation. This
is a self-opinion, and to me it looketh not
like the spiritual law of God.
3. Some say it is lawful, but not always
expedient, in which opinion there is this
much truth, that if the neighbour nation
have an evil cause, neque licet, neque ex-
pedit, it is neither lawful nor expedient.
But what is lawful in the case of necessity
so extreme, as is the loss of a brother's life,
or of a nation, must be expedient ; because
necessity of non-sinning maketh any lawful
thing expedient. As to help my brother
in fire or water, requiring my present and
speedy help, though to the loss of my goods,
must be as expedient as a negative com-
mandment, Thou shalt not murder.
4. Others think it lawful in the case
that my brother seek my help only, other-
wise I have no calling thereunto; to which
opinion I cannot universally subscribe, it is
held, both by reason and the soundest di-
vines, that to rebuke my brother of sin is
actus misericordice et charitatis, an act of
mercy and charity to his soul ; yet I hold
I am obliged to rebuke him by God's law
(Levit. xix. 17,) otherwise I hate him.
(Thes. v. 14; Col. iv. 17; Math, xviii. 15.)
188
LEX, REX : OR,
Nor can I think in reason, that my duty of
love to my brother doth not oblige me but
upon dependency on his tree consent ; but
as I am to help my neighbour's ox out of
a ditch, though my neighbour know not,
and so I have only his implicit and virtual
consent, so is the case here. I go not far-
ther in this case of conscience, — if a neigh-
bour nation be jealous of our help, and in
an hostile way should oppose us in helping,
(which, blessed be the Lord, the honourable
houses of the parliament of England hath not
done, though malignant spirits tempted
them to such a course,) what, in that case,
we should owe to the afflicted members of
Christ's body, is a case may be determined
easily.
5. The fifth and last opinion is of those
who think, if the king command papists and
prelates to rise against the parliament and
our brethren in England in wars, that we
are obliged in conscience, and by our oath
and covenant, to help our native prince
against them, — to which opinion, with hands
and feet I should accord, if our king's cause
were just and lawful ; but from this it fol-
loweth, that we must thus far judge of the
cause, as concerneth our consciences, in the
matter of our necessary duty, leaving the
judicial cognizance to the honourable par-
liament of England. But because I cannot
return to all these opinions particularly, I
see no reason but the civil law of a king-
dom doth oblige any citizen to help an in-
nocent man against a murdering robber,
and that he may be judicially accused as a
murderer, who faileth in his duty, and that
Solon said well, Beatam remp. esse Mam,
in qua quisque injuriam alterius suam
estimet, It is a blessed society in which
every man is to repute an injury done
against a brother, as an injury done against
himself. As the Egyptians had a good
law, by which he was accused upon his head
who helped not one that suffered wrong;
and if he was not able to help, he was
held to accuse the injurer, if not, his pu-
nishment was whips or three days' hunger ;
it may be upon this ground it was that
Moses slew the Egyptian. Ambrose com-
mended him for so doing.
Assert. — We are obliged, by many bands,
to expose our lives, goods, children, &c, in
this cause of religion and of the unjust op-
pression of enemies, for the safety and de-
fence of our dear brethren and true religion
in England ; 1 Prov. xxiv. 11, 12, " If thou
forbear to deliver them that are drawn to
death, J^DS D^flpS (taken as captives to
be killed,) and those that are ready to be
slain. If thou sayest, Behold we knew it
not, doth not he that pondereth the heart
consider it ? and he that keepeth thy soul,
doth he not know it ? and shall he not ren-
der to every man according to his work ?"
Mr Jermine is too narrow, who, commenting
on the place, restricteth all to these two,
that the priest should deliver by interceding
for the innocent, and the king by pardoning
only. But to deliver is a work ot violence,
as (1 Sam. xxx. 18) David by the sword
rescued his wives ; Hos. v. 14, " I will take
away, and none shall rescue ;" 1 Sam. xvii.
35, " I rescued the lambs out of his mouth,"
out of the lion's mouth, which behoved to be
done with great violence ; 2 Kings xviii.
34, " They have not delivered "^^H O
Samaria out of my hand." So Cornel, a
Lapide, Charitas suadet, ut vi et armis
eruamus injuste ductos ad mortem. Am-
brose (lib. 1, ojfic. c. 36) citeth this same
text, and commendeth Moses who killed the
Egyptian in defending a Hebrew man. To
deliver is an act of charity, and so to be
done, though the judge forbid it, when the
innocent is unjustly put to death.
Obj. — But in so doing, private men may
offer violence to the lawful magistrate when
he unjustly putteth an innocent man to
death, and rescue him out of the hands of
the magistrate ; and this were to bring in
anarchy and confusion ; for if it be an act of
charity to deliver the innocent out of the
hands of the magistrate, it is homicide to a
private man not to do it ; for our obedience
to the law of nature tyeth us absolutely,
though the magistrate forbid these acts; for
it is known that I must obey God rather
than men.
Ans. — 1. The law of nature tyeth us to
obedience in acts of charity, yet not to per-
form these acts after any way and manner
in a mere natural way, impetu natures; but
I am to perform acts of natural charity in a
rational and prudent way, and in looking to
God's law, else, if my brother or father were
justly condemned to die, I might violently
deliver him out of the magistrate's hand,
but, by the contrary, my hand should be first
on him, without natural compassion. As, if
my brother or my wife have been a blasphe-
mer of God, (Deut. xiii. 6 — 8,) therefore,
I am to do acts natural, as a wise man ob-
serving (as Solomon saith, Eccles. viii. 5)
THE LAW AND THE TRIXCE.
189
" both time and judgment." Now, it were
no wisdom for one private man to hazard
his own life by attempting to rescue an inno-
cent brother, because he hath not strength
to do it, and the law of nature obligeth me
not to acts of charity when I, in all reason,
see them impossible ; but a multitude who
had strength did well to rescue innocent
Jonathan out of the hands of the king, that
he should not be put to death ; yet one man
was not tyed by the law of nature to rescue
Jonathan if the king and prince had con-
demned him, though unjustly.
2. The host of men that helped David
against king Saul (1 Sam. xxii. 2) entered
in a lawful war, and (1 Chron. xii. 18)
Amasa, by the Spirit of the Lord, blesseth
his helpers, — " Peace, peace be unto thee,
and peace be to thy helpers, for thy God
helpeth thee." Therefore, peace must be
to the parliament of England, and to their
helpers, their brethren of Scotland.
3. Numb, xxxii. 1—3, &c. ; Josh. i. 12
— 14, the children of Gad, and of Reuben,
and the half tribe of Manasseh, though their
inheritance fell to be on this side of Jordan,
yet they were to go over the river armed, to
fight for their brethren, while they had also
possession of the land, at the commandment
of Moses and Joshua.
4. So Saul and Israel helped the men of
Jabesh-Gilead conjoined in blood with them,
against Nahash the Ammonite, and his un-
just conditions in plucking out their right
eyes, 1 Sam. xi.
5. Jephtha (Judg. xii. 2) justly rebuketh
the men of Ephraim because they would
not help him and his people against the
Ammonites.
6. If the communion of saints be any
bond, — that England and we have " one
Lord, one faith, one baptism, one head and
Saviour, Jesus Christ," then are we obliged
to help our bleeding sister-church against
these same common enemies, papists and
prelates ; but the former is undeniably true,
tor we send help to the Kochelle, if there
had not been a secret betraying of our bre-
thren, we send help to the recovery of the
palatinate, and the aid of the confederate
princes against Babel's strength and power,
and that lawfully, but we did it at great
leisure and coldly. Queen Elizabeth helped
Holland against the king of Spain ; and, be-
sides the union in religion, we sail in one
ship together, being in one island, under one
king ; and now, by the mercy of God, have
sworn one covenant, and so must stand or
fall together.
7. We are obliged, by the union betwixt
the kingdoms, concluded to be by the Con-
vention of the Estates of Scotland, anno
1585, at the desire of the General Assem-
bly, 1583, to join forces together at home,
and enter in league with protestant princes
and estates abroad, to maintain the protes-
tant religion against the bloody confederacy
of Trent ; and, accordingly, this league be-
tween the two crowns was subscribed at
Berwick, 1586, and the same renewed,
1587-8, as also the Confession of Faith sub-
scribed, when the Spanish armada was on
our coasts.
8. The law of God, commanding that we
love our neighbour as ourselves, and there-
fore to defend one another against unjust
violence, (I. ut vim. ff. de just, et jur.,)
obligeth us to the same, except we think
God can be pleased with lip-love in word
only, which the Spirit of God condemneth
(1 John ii. 9, 10 ; iii. 16). And the sum of
law and prophets is, that as we would not
men should refuse to help us when we are
unjustly oppressed, so neither would we so
serve our afflicted brethren, (I. in facto ff.
de cond. et demonstr. sect. Si uxor. Justit.
dc nupt.)
9. Every man is a keeper of his brother's
life. There is a voluntary homicide when a
man refuseth food or physic necessary for his
own life, and refuseth food to his dying bro-
ther; and men are not born for themselves;
and when the king defendeth not subjects
against their enemies, all fellow-subjects, by
the law of nature, of nations, the civil and
cannon law, have a natural privilege to de-
fend one another, and are mutual magistrates
to one another when there be no other ma-
gistrates. If an army of Turks or pagans
would come upon Britain, if the king were
dead, as he is civilly dead in this juncture of
time, when he refuseth to help his subjects,
one part of Britain would help another ; as
Jehoshaphat, king of Judah, did right in
helping Ahab and Israel, so the Lord had
approved of the war. If the left hand be
wounded, and the left eye put out, nature
teacheth that the whole burden of natural
acts is devolved on the other hand and eye,
and so are they obliged to help one another.
10. As we are to bear one another's bur-
dens, and to help our enemies to compas-
sionate strangers, so far more those who
make one body of Christ with us.
190
LEX, REX ; OR,
11. Meroz is under a curse, who helpeth
not the Lord, so one part of a church
another. A woe lieth on them that are at
ease in Zion, and helpeth not afflicted
Joseph so far as they are able.
12. The law of gratitude obligeth us to
this. England sent an army to free both
our souls and bodies from the bondage of
popery and the fury of the French, upon
which occasion a parliament at Leith (anno
1560) established peace and religion, and
then after, they helped us against a faction
of papists in our own bosom, for which we
take God's name in a prayer, seeking grace
never to forget that kindness.
13. When papists in arms had undone
England, (if God give them victory,) they
should next fall on us, and it should not be
in the king's power to resist them. When
our enemies, within two days' journey, are in
arms, and have the person of our king and
his judgment, and so the breathing-law of
the two kingdoms, under their power, we
should but sleep to be killed in our nest, if
we did not arise and fight for king, church,
country, and brethren.
Obj. By these and the like grounds,
when the king's royal person and life is in
danger, he may use papists as subjects, not
as papists, in his own natural self-defence.
Ans. 1. — Hell and the devil cannot say
that a thought was in any heart against the
king's person. He slept in Scotland safe,
and at Westminster in his own palace, when
the estates of both kingdoms would not so
much as take the water-pot from his bed-
side, and his spear ; and Satan instilled this
traitorous lie, first in prelates, then in
papists. 2. The king professeth his main-
tenance of the true protestant religion in his
declarations since he took arms, but if Saul
had put arms in the hands of Baal's priests,
and in an army of Sidonians, Philistines,
Ammonites, professing their quarrel against
Israel was not to defend the king, but their
Dagon and false gods, clear it were, Saul's
army should not stand in relation of helpers
of the king's, but of advancers of their own
religion. Now, Irish papists, and English,
in arms, press the king to cancel all laws
against popery, and make laws for the free
liberty of mass, and the full power of
papists, then the king must use papists, as
papists, in these wars.
QUESTION XXXVIII.
WHETHER MONARCHY BE THE BEST OF GO-
VERNMENTS.
Nothing more unwillingly do I write
than one word of this question. It is a
dark way; circumstances in fallen nature
may make things best to be, hie et nunc,
evil, though to me it is probable, that
monarchy in itself, monarchy de jure, that
is, lawful and limited monarchy is best,
even now, in a kingdom, under the fall of
sin, if other circumstances be considered.
But observe, I pray you, that Mr Sym-
mons and this poor Prelate, do so extol
monarchy, that there is not a government
save monarchy only, all other governments
are deviations ; and therefore Mr Symmons
saith, (p. 8,) " If I should affect another
government than monarchy, I should neither
tear God nor the king, but associate myself
with the seditious ;" and so the question of
monarchy is, — 1. Which is the choicest
government in itself, or which is the choicest
government in policy, and in the condition
of man fallen in the state of sin ? 2. Which
is the best government, that is, the most
profitable, or the most pleasant, or the
most honest ? For we know that there be
these three kinds of good things, — things use-
ful and profitable, bona utilia ; things plea-
sant, jucunda ; things honest, honesta ;
and the question may be of every one of the
three. 3. The question may be, Which of
these governments be most agreeable to na-
ture? That is, either to nature in itself, as it
agreeth communiter to all natures of ele-
ments, birds, beasts, angels, men, to lead
them, as a governor, doth to their last end ;
or, Which government is most agreeable to
men, to sinful men, to sinful men of this or
that nation ? For some nations are more
ambitious, some moi*e factious; some are
better ruled by one, some better ruled by
many, some by most and by the people.
4. The question may be in regard of the
facility or difficulty of loving, fearing, obey-
ing, and serving ; and so it may be thought
easier to love, tear, and obey one monarch
than many l-ulers, in respect that our Lord
saith, it is difficult to serve two masters, and
possibly more difficult to serve twenty or an
hundred. 5. The question may be in re-
gard of the power of commanding, or of the
THE LAW AND THE PRINCE.
191
justice and equity of commanding; hence
from this last I shall set down the first
thesis.
Assert. 1. — An absolute and unlimited
monarchy is not only not the best form of
government, but it is the worst, and this is
against our petty Prelate and all royalists.
My reasons are these : — 1. Because it is an
unlawful ordinance, and God never ordained
it; and I cannot ascribe the superlative
degree to anything of which I deny the
positive. Absolute government in a sinful
and peaceable man is a wicked government,
and not a power from God, for God never
gave a power to sin. Plenitudo potestatis
ad malum et injuriam non extenditur.
Sozenus Junior (cons. 65) in causa occur-
renti (I. 2). Ferdinand. Loazes in suo
eons, pro March, de Velez. (p. 54, n. 65) ,
and so that learned senator, Ferd. Vasquez
(p. 1, 1. 1, c. 5, n. 17). 2. It was better
for the state that Epiminondas could not
sleep than that he could sleep, when the
people were dancing, because, said he, " I
wake that you may have leave to sleep and
be secure ;" for he was upon deep cogitations
how to do good to the commonwealth when
the people were upon their pleasures ; be-
cause all kings, since the Ml of the father,
king Adam, are inclined to sin and injustice,
and so had need to be guided by a law, even
because they are kings, so they remain men.
Omnipotency in one that can sin is a
cursed power. With reason all our divines
say, the state of saving grace in the second
Adam, where there is non posse deficere,
they cannot fall away from God, is better
than the state of the first Adam, where
there was posse non deficere, a power not to
fall away ; and that our free will is better
in our country in heaven, where we cannot
sin, than in the way to our country, on earth,
where we have a power to sin ; and so God's
people is in a better case, (Hosea, ii. 6, 7,)
" Where her power to overtake her lovers
is closed up with an hedge of thorns that she
cannot find her paths ;" then the condition
of Ephraim, of whom God saith, (Hosea, iv.
17,) " Ephraim is joined to idols, let him
alone." So cannot that be a good govern-
ment when the supreme power is in a sinful
man, as inclinable to injustice by nature as
any man, and more inclinable to injustice
by the condition of his place than any ;
and yet by office he is one that can do no
injustice against his subjects ; he is a king,
and so may destroy Uriah, kill his subjects,
but cannot sin ; and this is, to flattering
royalists, the best government in the world.
As if an unchained lion were the best go-
vernor, because unchained, to all the beasts,
sheep, and lambs, and all others, which
with his teeth and paws he may reach, and
that by virtue of an ordinance of God.
3. What is one man under no restraint, but
made a god on earth, and so drunk with
the grandeur of a sinning-god, here under
the moon and clouds ? who may hear good
counsel from men of his own choosing, yet
is under no restraint of law to follow it,
being the supreme power absolute, high,
mighty, and an impeccable god on earth.
Certainly this man may more easily err,
and break out in violent acts of injustice,
than a number of rulers, grave, wise, un-
der a law. One being a sinful man, shall
sooner sin and turn a Nero (when he may
go to hell, and lead thousands to hell with
him gratis) than a multitude of sinful men,
who have less power to do against law, and
a tyrannous killing of innocents, and a sub-
version of laws, liberties, and religion, by
one who may, by office, and without resist-
ance of mortal men, do all ill, is more dange-
rous and hurtful than division and faction
incident to aristocracy. 4. Caesar is great,
but law and reason are greater ; by an abso-
lute monarchy all things are ruled by will
and pleasure above law ; then this govern-
ment connot be so good as law and reason
in a government by the best, or by many.
5. Under absolute monarchy, a free people
is, actu primo, and in themselves enslaved,
because though the monarch, so absolute,
should kill all, he cannot be controlled ;
there is no more but flight, prayers, and
tears remaining ; and what greater power
hath a tyrant? None at all, so may we
say. An absolute monarch is, actu primo,
a sleeping lion, and a tyrant is a waking
and a devouring lion, and they differ in
accidents only. 6. This is the papists' way.
Bellarinjne (de pontif., I. 1, c. 1), and
Sanderus (de visibili Monarchia, I. 3, c. 3),
Turrere (in sum de Eccles. I. 2, c. 2),
prove that the government of the church is
by an absolute monarch and pope, because
that is the best government which yet is
in question. So royalists prove common-
wealths must be best governed by absolute
monarchs, because that is the best govern-
ment ; but the law saith, it is contrary to
nature, even though people should paction
to make a king absolute : Conventio procur-
192
LEX, REX ; OR,
atoria ad dilapidandwm et dissipandwm
juri natwali contraria nulla est, I. Jilius
15, deeonrf. Just. I. Xepos. procul 125, de
■,i'f. I. 188, ubi. de jure Regni I.
85, d. tit.
Assert. 2. — Monarchy in its latitude —
as heaven, and earth, and all the host there-
in, are citizens— is the best government ab-
solutely, because God's immediate govern-
ment must be best ; but that other govern-
ments are good or best so far as they come
near to this, must prove that there is a mo-
narchy in angels if there be a government
and a monarchy amongst fishes, beasts, birds,
&c. ; and that, if Adam had never sinned,
there should be one monarchy amongst all
mankind. I profess I have no eye to see
what government could be in that state, but
paternal, or marital ; and, by this reason,
there should be one catholic emperor over
all the kings of the earth ; a position held by
some papists and interpreters of the cannon
law, which maketh all the princes of the
earth to be usurpers, except those who ac-
knowledge a catholic dominion of the whole
earth in tbe emperor, to whom they submit
themselves as vassals. If kings were gods
and could not sin, and just, as Solomon hi the
the beginning of his reign, and as David, I
could say, monarchy so limited must be bet-
ter than aristocracy or democracy, 1. Be-
cause it is farthest from injustice, nearest to
peace and godliness. (J/. /. 3, sect, aparet.
ff. de administrat. tutor. I. 2, sect, novis-
sime, ff. de orig. jur. Aristot. pol. I. 8, c.
10, Bodin. de Rep. I. G, e.4.) 2. Because
God ordained this government in his people.
3. By experience it is known to be less ob-
noxious to change, except that some think
the Venetian commonwealth best ; but, with
reverence, I see small difference between a
king and the Duke of Venice.
Assert. 3. — Every government hath some-
thing wherein it is best ; monarchy is hon-
ourable and glorious-like before men ; aris-
tocracy, for counsel, is surest; democracy
for liberty, and possibly for riches and gain,
is best. Monarchy obtaineth its end with
more conveniency, because the ship is easier
brought to land when one sitteth at the
helm, than when ten move the helm. We
more easily fear, love, obey, and serve one
than many. He can more easily execute
the laws.
Assert. 4.— A limited and mixed monar-
chy, such as is in Scotland and England,
seems to me the best government, when par-
liaments, with the king, have the good of all
the three. This government hath glory,
order, unity, from a monarch ; from the
government of the most and wisest, it hath
safety of counsel, stability, strength ; from
the influence of the commons, it hath liber-
ty, privileges, promptitude of obedience.
Obj. 1. — There is more power, terror, and
love, in one than in many.
Ans. — Not more power ; terror cometh
from sin, and so to nature fallen in sin, in
circumstances a monarchy is best.
Obj. 2. — It is more convenient to nature
that one should be lord than many.
Ans. — To sinless nature, true, as in a fa-
ther to many children.
Obj. 3. — Monarchy, for invention of coun-
sels, execution, concealing of secrets, is above
any other government.
Ans. — That is in some particulars, be-
cause sin hath brought darkness on us; so
are we all dull of invention, slow in execu-
tion, and by reason of the falseness of men,
silence is needful ; but this is the accidentary
state of nature, and otherwise there is safety
in a multitude of counsellors; one command-
ing all, without following counsel, trusteth in
his own heart, and is a fool.
Obj. 4. — A monarch is above envy, be-
cause he hath no equal.
Ans. — Granted ; in many things a mo-
narchy is more excellent, but that is no-
thing to an absolute monarchy, for which
royalists contend.
Obj. 5. — In a multitude there be more
fools than wise men, and a multitude of
vices, and little virtue, is in many.
Ans. — Mere multitude cannot govern in
either democracy or aristocracy, for then all
should be rulers, and none ruled, but many
eyes see more than one, — by accident one
may see more than hundreds, but accidents
are not rules.
Obj. 6. — Monarchy is most perfect, be-
cause most opposite to anarchy and most
agreeable to nature, as is evident in plants,
birds, bees.
Ans. — Government of sinless nature void
of reason, as in birds and bees, is weak to
conclude politic civil government amongst
men in sin, and especially absolute govern-
ment. A king-bee is not absolute, nor a
king-eagle, if either destroy its fellows, by
nature all rise and destroy their king. A
king-bee doth not act by counsel borrowed
from fellow-bees, as a king must do, and
communication of counsels lesseneth abso-
THE LAW AND THE PRINCE.
193
luteness of a man. I see not how a monar-
chy is more opposite to anarchy and confu-
sion than other governments. A monarch,
as one, is more opposite to a multitude, as
many, but there is no less order in aristo-
cracy than in monarchy ; for a government
essentially includeth order of commanding
and subjection. Now, one is not, for abso-
luteness, more contrary to anarchy than
many ; for that one now who can easily slip
from a king to a tyrant, cannot have a ne-
gative voice in acts of justice, for then should
he have a legal power to oppose justice,
and so, for his absoluteness, he should be
most contrary to order of justice ; and a mo-
narch, because absolute, should be a door-
neighbour to disorder and confusion.
Obj. — But the parliament hath no power
to deny their voices to things just, or to
cross the law of God, more than the king.
Ans. — It is true neither of them hath a
negative voice against law and reason, but if
the monarch, by his exorbitant power, may
deny justice, he may, by that same legal
power, do all injustice ; and so there is no
absoluteness in either.
Obj. — Who should then punish and co-
erce the parliament in the case of exorbi-
tance ?
Ans. — Posterior parliaments.
Obj. — Posterior parliaments and people
may both err.
Ans. — All is true; God must remedy that
only.
QUESTION XXXIX.
WHETHER OR NO ANY PREROGATIVE AT ALL
ABOVE THE LAW BE DUE TO THE KING, OR
IF " JURA MAJESTATIS" BE ANY SUCH PRE-
ROGATIVE ROYAL.
I conceive kings are conceived to have a
threefold supreme power. 1. Strictly abso-
lute to do what they please, their will being
simply a law. This is tyrannical. Some
kings have it, de facto, ex consuetudine, but
by a divine law none have it. I doubt if
any have it by a human positive law, except
the great Turk and the king of Spain, over
his conquest without the borders of Europe,
and some few other conquerors. 2. There
is another power limited to God's law, the
due proper right of kings. (Deut. xvii. 18 —
20.) 3. There is, a potestas intermedia, a
middle power, not so vast as that which is
absolute and tyrannical, which yet is some
way human. This I take what jurists call
jus regium, lex regia, jura regalia regis ;
Cicero, jura majestatis ; Livius, jura im-
perii, and these royal privileges are such
common and high dignities as no one parti-
cular magistrate can have, seeing they are
common to all the kingdom, as that Csesar
only should coin money in his own name.
Hence the penny given to Christ, because
it had Csesar's image and superscription,
(Matt. xxii. 20, 21,) infers by way of argu-
mentation, dir»Ws «Jv, &c, give therefore
tribute to Caesar as his due ; so the maga-
zine and armoury for the safety of the king-
dom is in the king's hand. The king hath
the like of these privileges, because he is the
common, supreme, public officer and minis-
ter of God for the good of all the kingdom ;
and, amongst these royal privileges, I reckon
that power that is given to the king, when
he is made king, to do many things without
warrant of the letter of the law, without the
express consent of his council, which he can-
not always carry about with him, as the law
saith. The king shall not raise armies with-
out consent of the parliament ; but if an
army of Irish, or Danes, or Spaniards,
should suddenly land in Scotland, he hath
a power, without a formally-convened par-
liament, to command them all to rise in
arms against these invaders and defend
themselves, — this power no inferior magis-
trate hath as he is, but such a magistrate.
And in many such exigencies, when the ne-
cessity of justice or grace requireth an ex-
temporal exposition of laws, pro re nata,
for present necessary execution, some say
only the emperor, — others, all kings have
these pleasures. I am of the mind of Ar-
nisseus,1 that these privileges are not re-
wards given to princes for their great pains ;
for the king is not obliged to govern the
commonwealth because he receiveth these
royal privileges as his reward, but because
by office he is obliged to govern the com-
monwealth ; therefore these privileges are
given to him, and without them he could
not so easily govern. But I am utterly
against Arnisseus, who saith, " These are
not essential to a king, because (saith he) he
createth marquises, dukes, nobles, &c, and
constituteth magistrates, not because of his
royal dignity, but by reason of his aboslute
1 Arnisaeus de jure, 6 maj. c. 1, n. 3, p. 157, 158.
2d
194
power; for many princes have supreme
power and cannot make nobles, and there-
fore to him they are jura majestatis, non
jura potestatis.
Ans. 1. — The king, suppose a limited
king, may and ought to make nobles, for he
may confer honours as a reward of virtue ;
none can say Pharaoh, by his absolute au-
thority, and not as a king, advanced Joseph
to be a noble ruler. "VY e cannot say that,
for there was merit and worth in him de-
serving that honour; and Darius, not by
absolute authority, but on the ground of
well-deserving, (the rule by which kings
are obliged, in justice, to confer honours,)
promoted Daniel to be the first president
of all his kingdoms, because, (Dan. vi. 3,)
" an excellent spirit was in him ;" and in
justice the king could ennoble none rather
than Daniel, except he should fail against
the rule of conferring honours. It is ac-
knowledged by all, that honos est proemium
virtutis, honour is founded upon virtue ;
and therefore Darius did not this out of
his absolute majesty, but as king.
2. All kings as kings, and by a divine
law of God, and so by no absoluteness of
majesty, are to make men of wisdom, fear-
ing God, hating covetousness, judges under
them, Deut. u 13; 2 Chron. xix. 6, 7;
Psal. ci. 6—8.
3. If we suppose a king to be limited, as
God's king is, (Deut. xvii. 18 — 20,) yet is
it his part to confer honours upon the
worthiest. Now, if he have no absolute-
ness of majesty, he cannot confer honours
out of a principle that is none at all, unum
quodque sicut est, ita operatur ; and if the
people confer honours, then must royalists
grant that there is an absolute majesty in
the people, why then may they not derive
majesty to a king ? and why then do royal-
ists talk to us of God's immediate creating
of kings, without any intervening action of
the people ?
4. By this absoluteness of majesty, kings
may play the tyrant, as Samuel (1 Sam.
viii. 9 — 14) foretelleth Saul would do. But
I cannot believe that kings have the same
very official absolute power, from -whence
they do both acts of grace, goodness, and
justice, such as are to expone laws extem-
porally in extraordinary cases, — to confer
honours upon good and excellent men of
grace, — to pardon offenders upon good
grounds, and also do acts of extreme ty-
ranny : for out of the same fountain doth
not proceed both sweet water and bitter.
Then by this absoluteness kings cannot do
acts of goodness, justice, and grace, and so
they must do good as kings, and they must
do acts of tyranny as men, not from ab-
soluteness of majesty.
5. Inferior magistrates, in whom there
is no absoluteness of majesty, according to
royalists, may expound laws also extempo-
rally, and do acts of justice, without forma-
lities of civil or municipal laws, so they keep
the genuine intent of the law, as they may
pardon one that goeth up to the wall of a
city, and discovereth the approach of the
enemy, when the watchmen are sleeping,
though the law be, that any ascending to
the wall of the city shall die. Also, the
inferior judge may make judges and depu- \
ties under himself.
6. This distinction is neither grounded
upon reason or laws, nor on any word of
God. Not the former, as is proved before,
for there is no absolute power in a king to
do above or against law ; all the official
power that a king hath, is a royal power to
do good, for the safety and good of his sub-
jects, and that according to law and reason,
and there is no other power given to a king
as a king; and for Scripture, Arnisseus al-
legeth, 1 Sam. viii. the manner or law
of the king, ver. 9, 11, and he saith, It
cannot be the custom and manner of the
king, but must be the law of absolute ma-
jesty, 1. Because it was the manner of in-
ferior judges, as Tiberius said of his judges,
to flay the people, when they were com-
manded to shear them only. 2. Samuel's
sons, who wrested judgment and perverted
the law, had this manner and custom to
oppress the people, as did the sons of Eli ;
and, therefore, without reason it is called
the law of kings, jus regum, if it was the
law of the judges ; for if all this law be ty-
rannical, and but an abuse of kingly power,
the same law may agree to all other magis-
trates, who, by the same unjust power, may
abuse their power; but Samuel (as Bren-
tius observeth, komi. 27, in 1 Sam. inprinc.)
doth mean here a greater license than kings
can challenge, if at any time they would
make use of their plentitude of absolute
power ; and therefore, nomine juris, by
the word law here, he understandeth a
power granted by law, jure, or right to the
king, but pernicious to the people, which
Gregory calleth jus regium tyrannorum,
the royal law of tyrants. — So Seneca, 1 de
fHE LAW AND THE PRINCE.
195
clem. c. 11, hoc interest inter regem et ty-
rannum, species ipsa fortunes ac licentice
par est, nisi quod tyranni ex voluntate
soeviunt, reges non nisi ex causa et neces-
sitate ? quid ergo ? 11071 reges quoque occi-
dere solent ? sed quoties fieri publica uti-
litas persuadet, tyrannis scevitia cordi est.
A tyrant in this differeth from a king, Qui
ne ea quidem vult, quo?, sibi licent, that a
king will not do these things which are law-
ful ; a tyrant doth quae libet, what he pleas-
eth to do.
Ans. 1. Arnisceus betray eth his ignor-
ance in the Scriptures, for the word tOD££>Q
signifieth a custom, and a wicked custom,
as by many Scriptures I have proved al-
ready : his reasons are poor. It is the man-
ner of inferior judges, as we see in the sons
of Eli and Samuel, to pervert judgment, as
well as king Saul did ; but the king may
more oppress, and his tyranny hath more
colour, and is more catholic than the op-
pression of inferior judges. It is not Sa-
muel's purpose thus to distinguish the judges
of Israel and the kings, in that the judges
had no power granted them of God to op-
press, because the people might judge their
judges and resist them; and there was
power given of God to the king, so far to
play the tyrant, that no man could resist
him, or say, What dost thou ? The text will
not bear any such difference ; for it was as
unlawful to resist Moses, Joshua, Samuel,
(as royalists prove from the judgment of
God that came upon Korah, Dathan, and
Abiram,) as to resist king Saul and king
David : royalists doubt not to make Moses a
king. It was also no less sin to resist Sa-
muel's sons, or to do violence to their per-
sons, as judging for the Lord, and sent by
the supreme judge, their father Samuel,
than it was sin to resist many inferior judges
that were lions and even wolves under the
kings of Israel and Judah, so they judged
for the Lord, and as sent by the supreme
magistrate. But the difference was in this,
that judges were extraordinarily raised up
of God out of any tribe he pleased, and
were believers, (Heb. xi. 32,) saved by faith,
and so used not their power to oppress the
people, though inferior judges, as the sons
of Eli and Samuel, perverted judgment;
and therefore in the time of the judges,
God, who gave them saviours and judges, was
their king ; but kings were tyed to a certain
tribe, especially the line of David, to the
kingdom of Judah.
2. They were hereditary, but judges are
not so.
3. They were made and chosen by the
people, (Deut. xvii. 14, 15 ; 1 Sam. x. 17 —
20 ; 2 Sam. v. 1 — 3,) as were the kings of
the nations ; and the first king, (though a
king be the lawful ordinance of God,) was
sought from God in a sinful imitation of the
nations, (1 Sam. viii. 19, 20,) and therefore
were not of God's peculiar election, as the
judges, and so they were wicked men, and
many of them, yea, all for the most part,
did evil in the sight of the Lord, and their
law, tODt^Qj their manner and custom, was
to oppress the people, and so were their in-
ferior judges little tyrants, and lesser lions,
leopards, evening wolves. (Ezek. xxii. 27 ;
Mic. iii. 1—3 ; Isa. iii. 14, 15.) And the
kings and inferior judges are only distin-
guished, de facto, that the king was a more
catholic oppressor, and the old lion, and so
had more art and power to catch the prey
than the inferior judges, who were but
whelps, and had less power, but all were op-
pressors, (some few excepted, and Samuel
speaketh of that which Saul was to be, de
facto, not de jure, and the most part of the
kings after him,) and this tyranny is well
called jus regis, the manner of the king,
and not the manner of the judges, because
it had not been the practice, custom, and
tDDti^D) of the believing judges, before
Saul's reign, and while God was his people's
king, (1 Sam. viii. 7,) to oppress. We grant
that all other inferior judges, after the peo-
ple cast off God's government, and, in imi-
tation of the nations, would have a king,
were also lesser tyrants, as the king was a
greater tyrant, and that was a punishment
of their rejecting God and Samuel to be
their King and judge. How shall Arnis-
seus prove that this manner or tODJ£^£ °f the
king was, potestas concessa, a power grant-
ed, I hope, granted of God, and not an
abuse of kingly power ; for then he and roy-
alists must say, that all the acts of tyranny
ascribed to king Saul, (1 Sam. viii. 11 — 14,)
by reason of which they did cry out, and
complain to God because of their oppres-
sion, was no abuse of power given to Saul ;
therefore it was an use, and a lawful use of
power given of God to their king, for there
is no medium betwixt a lawful power used
in moral acts, and a lawful power abused ;
and, indeed, Arnisseus so distinguisheth a
king and a tyrant, that he maketh them all
one in nature and specie. He saith, a ty-
196
LEX, REX ; OR,
rant doth, quod licet, that which by law he
may do, and a king doth not these things,
quae licent, which by law he may do ; but,
so to me it is clear, a tyrant, acting as a ty-
rant, must act according to this DDJ^D ^aw
of the king, and that which is lawful, and a
king, acting as a king, and not doing these
things that are lawful, must sin against his
office, and the power that God hath given
to him, which were to commend and praise
the tyrant, and to condemn and dispraise
the king. If this law of the king be a per-
missive law of God, which the king may,
out of his absoluteness, put in execution to
oppress the people, such as a law of a bill of
divorcement, as Arnisaeus, Barclay, and
other royalists say, then must God have
given a law to every king to play the tyrant,
because of the hardness of the king's heart ;
but we would gladly see some word of God
for this. The law of a bill of divorcement
is a mere positive law, permitted in a par-
ticular exigent, when a husband, out of le-
vity of heart and affection, cannot love his
wife ; therefore God by a law permitted
him out of indulgence to put her away, that
both might have a seed, (the want where-
of, because of the blessed Seed to be born
of woman, was a reproach in Israel,) and
though this was an affliction to some parti-
cular women, yet the intent of the law, and
the soul thereof, was a public benefit to the
commonwealth of Israel, of which sort of
laws I judge the hard usage permitted by
God to his people — in the master toward
the servant — and the people of God toward
the stranger, of whom they might exact
usury — though not toward their brethren.
But that God should make a permissive law,
that Jeroboam might press all Israel to sin
and worship the golden calves ; and that a
king by law may kill, as a bloody Nero, all
the people of God, by a divine permissive
law, hath no warrant in God's word. Judge,
reader, if royalists make God to confer a
benefit on a land, when he giveth them a
king, if by a law of God, such as the law for
a bill of divorcement, the king may kill and
devour, as a lawful absolute lion, six king-
doms of nations that profess Christ and be-
lieve in his name. For if the king have a
divine law to kill an innocent Jonathan, so
as it be unlawful to resist him, he may, by
that same law, turn bloodier than either
Nero, Julian, or any that ever sucked the
paps of a lioness, or of whom it may be said,
Quaeque dedit nutrix ubera, tigris erat,
and he shall be given as a plague of God,
ex conditione doni, to the people, and the
people, inasmuch as they are gifted of God
wath a king, to feed them in a peaceable and
godly life, must be made slaves; now, it
wanteth reason, that God will have a permis-
sive law of murdering the church of Christ,
a law so contrary to the public good and in-
trinsical intention of a king, and to the im-
mutable and eternal law of nature, that one
man, because of his power, may, by God's
permissive law, murder millions of innocents.
Some may say, " It is against the duty of
love, that by nature and God's law the hus-
band owes to the wife, (Ephes. v. 25,) that
the husband should put away his wife ; for
God hateth putting away, and yet God made
a law, that a husband might give his wife
a bill of divorce, and so put her away ; and
by the same reason, God may make a law,
though against nature, that a king should
kill and murder, without all resistance."
Ans. — 1. The question is not, if God
may make permissive laws to oppress the in-
nocent ; I grant he may do it, as he may
command Abraham to kill his son Isaac ; and
Abraham by law is obliged to kill him, ex-
cept God retract his commandment, and whe-
ther God retract it or not, he may intend to
kill his son, which is an act of love and obe-
dience to God ; but this were more than a
permissive law. 2. We have a clear Scrip-
ture for a permissive law of divorce, and it
was not a law tending to the universal de-
struction of a whole kingdom, or many king-
doms, but only to the grievance of some par-
ticular wives ; but the law of divorce gave
not power to all husbands to put away their
wives, but only to the husband who could not \
command his affection to love his wife. But
this law of the king is a catholic law to all
kings, (for royalists will have all kings so
absolute, as it is sin and disobedience to God
to resist any,) that all kings have a divine
law to kill all their subjects; surely, then, it
were better for the church to want such
nurse-fathers, as have absolute power to suck
their blood ; and for such a perpetual per-
missive law continuing to the end of the
world, there is no word of God. Nor can
we think that the hardness of one prince's
heart can be a ground for God to make a
law, so destructive to his church and all
mankind ; such a permissive law, being a
positive law of God, must have a word of
Christ for it, else we are not to receive it.
Arnisseus, (cap. 4. distru. Tyran. ct priuc.
THE LAW AND THE PRINCE.
197
«. 16, ) thinketh a tyrant, in exercito, be-
coming a notorious tyrant, when there is no
other remedy, may be removed from govern-
ment, sine magno scelerc, without great
sin. But, I ask, how men can annul any di-
vine law of God, though but a permissive law.
For if God's permissive law warrant a ty-
rant to kill two innocent men, it is tyranny
more or less, and the law distinguisheth not.
3. This permissive law is expressly contrary
to God's law, limiting all kings. (Deut. xvii.
16 — 18.) How then are we to believe that
God would make an universal law contrary
to the law that he established before Israel
had a king 2 4. What Brentius saith is
much for us, for he calleth this JOSJJ^D law
a licence, and so to use it, must be licen-
tiousness. 5. Amisseus desireth that kings
may use sparingly the plenitude of their
power for public good ; there must be, saith
he, necessity to make it lawful to use the
plenitude of their power justly ; therefore
Ahab sinned, in that he unjustly possessed
Naboth's vineyard, though he sinned spe-
cially in this, that he came to the possession
by murder, and it was peculiar to the Jews
that they could not transfer their possessions
from one tribe to another. But if it be so,
then this power of absoluteness is not given
by permissive law, by which God permitted
putting away of wives, for the object of a
permissive law is sin ; but this plenitude of
power may be justly put forth in act, saith
he, if the public good may be regarded. I
would know what public good can legitimate
tyranny and killing of the innocent, — the
intentions of men can make nothing intrin-
sically evil to become good. 6. How can that
be a permissive law of God, and not his ap-
proving law, by which kings create inferior
judges ? for this is done by God's approving
will. 7- It is evident that Arniseeus' mind
is, that kings may take their subjects' vine-
yards and their goods, so they err not in
the manner and way of the act ; so be like,
if there had not been a peculiar law that
Naboth should not sell his vineyard, and if
the king had had any public use for it, he
might have taken Naboth's vineyard from
him ; but he specially sinned, saith he, in eo
maxime culpatur, §c, that he took away
the man's vineyard by murdering of him ;
therefore, saith Arnisseus, (c. 1. de potest,
moj. in bona privato. 2,) that by the king's
law, (1 Sam. viii.,) " There is given to the
king, a dominion over the people's sons,
daughters, fields, vineyards, olive-yards, ser-
vants, and flocks." So he citeth that, that
Daniel putteth all places, the rocks of the
mountains, the birds of the heaven, (Dan.
ii.,) under the king's power. So all is the
king's in dominion, and the subjects in use
only.
But 1. This law of the king, then, can be
no ground for the king's absoluteness above
law, and there can be no permissive law of
God here ; for that which asserteth the
king's royal dominion over persons and
things, that must be the law of God's ap-
proving, not his permitting evil ; but this is
such a law as Arnisseus saith.
2. The text speaketh of no law or law-
ful power, or of any absoluteness of king
Saul, but of his wicked custom, and his ra-
pine and tyranny, " He will take your sons,
your daughters, your fields, and your vine-
yards from you." Saul took not these
through any power of dominion by law, but
by mere tyranny.
3. I have before cleared that the subjects
have a propriety, and an use also, else how
could we be obliged, by virtue of the fifth
commandment, to pay tribute to the king,
(Bom. xiii. 7,) for that which we pay was
as much the king's before we paid as when
we have paid it.
4. Arniseeus saith, all are the king's, in
respect of the universal jurisdiction that the
king hath in governing and ordering all to
the universal end, the good of the common-
wealth ; for as universal nature careth for the
conservation of the specie and kind, so doth
particular nature care for the conservation of
individuals, so do men care for their private
goods, and the king is to refer every man's
private goods to the good of the public. But
the truth is, this taketh not away propriety
of goods from private men, retaining only the
use to private men, and giving the dominion
to the king, because this power that the king
hath of men's goods is not power of domi-
nion, that the king hath over the goods of
men, as if the king were dominus, lord and
owner of the fields and monies of the private
subject ; but it is a power to regulate the
goods for a public use, and supposeth the
abuse of goods, when they are monopolised
to and for private ends. The power that
the king hath over my bread is not a power
of dominion, so as he may eat my bread as
if it were his own bread, and he be lord of
my bread as I was sometime myself, before
I abused it, but it is a dominion improperly
and abusively so called, and is a mere fidu-
198
LEX, REX ; OR,
ciary and dispensatory power, because he is
set over my bread not to eat it, nor over my
houses to dwell in them, but only with a mi-
nisterial power, as a public though honoura-
ble servant and watchman, appointed by the
community as a mean for an end, to regulate
my bread, houses, monies and fields, for the
good of the public. Dominion is defined " a
faculty to use a thing as you please, except
you be hindered by force or by law;" (Jus-
tin, tit. c. de legibus in I. digna vox, Sfc. ;)
so have I a dominion over my own gar-
ments, house, money, to use them for uses
not forbidden by the law of God and man,
but I may not lay my corn-field waste, that
it shall neither bear grass nor corn, — the
king may hinder that, because it is a hurt to
the public ; but the king, as lord and sove-
reign, hath no such dominion over Naboth's
vineyard. How the king is lord of all goods,
ratione jurisdictionis, et tuitionis se. An-
ton, de paudrill. in I. ; Altius. n. 5, c. de
servit; Hottotn. Must, quest, q. 1, ad fin.,
cone. 2 ,• Lod. Molin. de just, et jur. dis.
25 ; Soto, de justitia et jur. I. 4, q. 4,
art. 1.
QUESTION XL.
WHETHER OR NO THE PEOPLE HAVE ANY
POWER OVER THE KING, EITHER BY HIS
OATH, COVENANT, OR ANY OTHER WAY.
Aristotle saitli, (JEthic. 8, c. 12,) 'O f*h
yap Tupavvo; to lavTou ffv/Aidigov ffxoTU. o ot fiao-tkiuf
ri Tail apxifi'.vuv , oil yao itrTi fiatriXiu;, o fih uIto-p-
xr,t xu xatri To~t iyai6o7; unifix™ '■> " & ty"
rant seeketh his own, a king the good of
the subjects ; for he is no king who is not
content and excelleth in goodness." The
former part of these words distinguish essen-
tially the king by his office from the tyrant.
Now, every office requireth essentially a duty
to be performed by him that is in office ;
and, where there is a duty required, there
is some obligation ; — if it be a pohtic duty,
it is a pohtic obligation. 1. Now, amongst
politic duties betwixt equal and equal, supe-
rior and inferior, that is not, de facto, re-
quired co-action for the performance thereof,
but, de jure, there is ; for two neighbour
kings and two neighbour nations, both being
equal and independent the one toward the
the other, the one owes a duty to the other ;
and if the Ammonites do a wrong to David
and Israel, as they are equal, de facto, the
one cannot punish the other, though the
Ammonites do a disgrace to David's messen-
gers, yet, de jure, David and Israel may
compel them to politic duties of politic con-
sociation, (for betwixt independent kingdoms
there must be some politic government, and
some pohtic and civil laws, for two or three
making a society cannot dwell together with-
out some policy,) and David and Israel, as by
the law of nature they may repel violence
with violence ; so, if the laws of neighbour-
hood and nations be broken, the one may
punish the other, though there be no rela-
tion of superiority and inferiority betwixt
them. 2. Wherever there is a covenant
and oath betwixt equals, yea, or superiors
and inferiors, the one hath some co-active
power over the other ; if the father give his
bond to pay to his son ten thousand pounds,
as his patrimony to him, though before the
giving of the bond the father was not obliged
but only by the law of nature to give a pa-
trimony to his son ; yet now, by a politic
obligation of promise, covenant, and writ, he
is obliged so to his son to pay ten thousand
pounds, that, by the law of nations and the
civil law, the son hath now a co-active power
by law to compel his father, though his supe-
rior, to pay him no less than ten thousand
pounds of patrimony. Though, therefore,
the king should stand simply superior to his
kingdom and estates, (which I shall never
grant,) yet if the king come under covenant
with his kingdom, as I have proved at
length, (c. 13,) he must, by that same, come
under some co-active power to fulfil his cove-
nant ; for omne promissum (saith the law)
cadit in debitum, what any doth promise
falleth under debt. If the covenant be pohtic
and civd, as is the covenant between king
David and all Israel, (2 Sam. v. 1 — 3,) and
between king Jehoash and the people, (2
Kings xi. 17, 18,) then the king must come
under a civil obhgation to perform the cove-
nant; and, though there be none superior
to king and the people on earth, to compel
them both to perform what they have pro-
mised, yet, de jure, by the law of nations,
each may compel the other to mutual per-
formance. This is evident, —
1. By the law of nations, if one nation
break covenant to another, though both be
independent, yet hath the wronged nation a
co-active power, de jure, (by accident, be-
cause they are weaker they want strength to
THE LAW AND THE PRIXCE.
199
compel, yet they have right to compel them,)
to force the other to keep covenant, or then
to punish them, because nature teacheth to
repel violence by violence, so it be done
without desire ot* revenge and malice.
2. This is proved from the nature of a
promise or covenant, for Solomon saith,
(Prov. vi. 1, 2,) " My son, if thou be surety
for thy friend, if thou hast stricken thy hand
with a stranger, thou art snared with the
words of thy mouth, and art taken with the
words of thy mouth." But whence is it that
a man free is now snared as a beast in a gin
or trap ? Certainly Solomon saith it is by a
word and striking of hands, by a word ot
promise and covenant. Now, the creditor
hath co-active power, though he be an equal
or an inferior to the man who is surety, even
by law to force him to pay, and the judge is
obliged to give his co-active power to the
creditor, that he may force the surety to
pay. Hence it is clear, that a covenant
maketh a free man under the co-active
power of law to an equal or a weaker, and
the stronger is by the law of fraternity to
help the weaker with his co-active power,
to cause the superior fulfil his covenant. If,
then, the king (giving, and not granting, he
were superior to his whole kingdom) come
under a covenant to them to seek their
good, not his own, to defend true protestant
religion, they have power to compel him to
keep his covenant, and Scotland (if the king
be stronger than England, and break his co-
venant to them) is obliged, by God's law,
(Prov. xxiv. 11,) to add their forces and
co-active power to help their brethren of
England.
3. The law shall warrant to loose the
vassal from the lord when the lord hath
broken his covenant. Hippolitus in I., Si
quis viduam col. 5, et dixit de quest. I. Si
quis major. 41 et 161. Bartol. n. 41. The
Magdeburgens. in libel, de offic. magistrat.
Imperatores et reges esse primarios vassal-
los imperii, et regni, et proinde sifeloniam
contra imperium aut regnum committant,
feudo privari, proinde ut alios vasallos.
Arnisseus (q. 6. An princeps qui jurat
subditis, etc. n. 2) saith, " This occasioneth
confusion and sedition." " The Egyptians
cast off Ptolemseus because he affected too
much the name of a king of the Romans,
his own friend," Dion. (1. 9.) " The States
punished Archidanius because he married a
wife of a low stature," Plutarch, (in Ages,
inpris.) " The ancient Burgundians thought
it cause enough to expel their king, if mat-
ters went not well in the state," Marcel. (1.
27.) " The Goths in Spain gave no other
cause of expelling their king, nisi quod sibi
displiceret, because he displeased them,"
Aimon. (1. 2, c. 20, 1. 4, c. 35.)
Ans. — All these are not to be excused in
people, but neither every abuse of power in
a king dethroneth a king, nor every abuse
in people can make null their power.
Arnisseus maketh three kinds of oaths :
The first is, when the king svveareth to de-
fend true religion and the Pope ; and he
denieth that this is an oath of fidelity, or
by paction or covenant made to the Pope or
clergy, he saith it is only on oath of pro-
tection, nor doth the king receive the crown
from the Pope or clergy.
Ans. 1. — Arnisseus divideth oaths that
are to be conjoined. We do not read that
kings swear to defend religion in one oath,
and to administer judgment and justice
in another ; for David made not two cove-
nants, but only one, with all Israel. 2. The
king was not king while he did swear this
oath, and therefore is must be a pactional
oath between him and the kingdom, and it
is true the king receiveth not a crown from
the church; yet David received a crown
from the church, for this end, " to feed the
Lord's people," and so conditionally. Papir.
Masse (I. 3, Chron. Gal.) saith, the king
was not a king before the oath, and that he
swore to be a keeper not only of the first,
but also of the second table of the law.
Ego N. Dei gratia, mox futurus rex Fran-
corum, in die ordinationis mea; coram Deo,
et Sanctis ejus polliceor, quod servabo pri-
vilegia canonica, justitiamque et jus uni-
cuique Prcelato debitum, vosque defendant,
Deo juvante, quantum potero, quemad-
modum rex ex officio in suo regno defen-
dere debet, unumquemque episcopum ac
ecclesiam, et administrabo populo justitiam
et leges, uti jus postulat. And so it is or-
dained in the council of Toledo : Quisquis
deinceps regni sortitus fuerit apicem, non
ante conscendat regiam sedem, quam in-
ter reliquas conditiones sacramento poli-
citus fuerit, quod non sinet in regno suo
degcre eum qui non sit catholicus. All
these by Scripture are oaths of covenant,
Deut, xvii. 17, 18; 2 . Sam. v. 1—4; 2
Kings xi. 17, 18.
Arnisseus maketh a second oath of abso-
lute kings, who swear they shall reign ac-
cording to equity and justice ; and he saith,
200
LEX, REX ; OR,
" There is no need of this oath, a promise
is enough ; for an oath increaseth not the
obligation, (L. fin. de non num. pec.,) only
it addeth the bound of religion ; for there
is no use of an oath where there is no pac-
tion of law against him that sweareth; if he
violate the oath, there followeth only the
punishment of perjury. And the word of
a prince is as good as his oath, only he con-
descendeth to swear to please the people,
out of indulgence, not out of necessity. And
the king doth not therefore swear because
he is made king, but because he is made
king he sweareth. And he is not king be-
cause he is crowned, but he is crowned be-
cause he is king. Where the crown goeth
by succession, the king never dieth ; and he
is king by nature before he be crowned."
Ans. 1. — This oath is the very first oath
spoken of before, included in the covenant
that the king maketh with the people ; (2
Sam. v. 2—4;) for absolute powers, by
Arnisseus' grant, doth swear to do the du-
ties of a king, as Bodinus maketh the oath
of France, (de Rep. 1.1. c. 8,) Juro ego,
per deum, ac promitto me juste regnatu-
rum judicium, equitatem, ac misericor-
diam facturum ; and Papir. Masse (1. 3,
Chron.) hath the same expressly in the par-
ticulars. And by this a king sweareth he
shall not be absolute ; and if he swear this
oath, he bindeth himself not to govern by
the law of the king, whereby he may play
the tyrant, as Saul did, (1 Sam. viii. 9 — 12,
&c.,) as all royalists expound the place. 2.
It is but a poor evasion to distinguish be-
twixt the kihg's promise and his oath ; for
the promise and covenant of any man, and
so of the king, doth no less bring him under
a civil obligation and politic co-action to
keep his promise than an oath ; for he that
becometh surety for his friend doth by no
civil law swear he shall be good for the son,
or perform in lieu and place of the friend ;
what he is to perform he doth only cove-
nant and promise, and in law and politic
obligation he is taken and snared by that
promise, no less than if he had sworn.
Reuben offered to be caution to bring Ben-
jamin safe home to his old father, (Gen.
xlii. 37,) and Judah also, (Gen. xliii. 9,)
but they do not swear any oath ; and it is
true that an oath addeth nothing to a con-
tract and promise, but only it lays on a re-
ligious tie before God, yet so as consequent-
ly, if the contractor violate both promise
and oath, he cometh under the guilt of per-
jury, which a law of men may punish. Now,
that a covenant bringeth the king under a
politic obligation as well as an oath, is al-
ready proved, and farther confirmed by Gal.
hi. 15, " Though it be a man's testament or
covenant, no man disannuleth and addeth
thereunto." No man, even by man's law,
can annul a confirmed covenant ; and there-
fore the man that made the covenant
bringeth himself under law to fulfil his own
covenant, and so must the king put himself
under men's law, by a covenant at his coro-
nation ; yea, and David is reputed by roy-
alists an absolute prince, yet he cometh
under a covenant before he be made a king.
3. It is but a weak reason to say that an
oath is needless, where no action of law can
be against the king who sweareth, if it have
any strength of reason. I retort it ; a legal
and solemn promise then is needless also,
for there is no action of law against a king
(as royalists teach) if he violate his promise.
So then king David needlessly made a co-
venant with the people at his coronation ;
for though David should turn as bloody an
enemy to the church as Nero or Julian,
the people have no law-action against Da-
vid ; and why then did Jeremiah seek an
oath of the king of Judah, that he would
not kill him nor deliver him into the hands
of his enemies? and why did David seek
an oath of Jonathan ? It is not like Jere-
miah and David could have law-action
against a king and a king's son, if they
should violate the oath of God; and far-
ther, it is a begging of the question to say
that the states can have no action against
the king if he should violate his oath.
Hugo Grotius putteth seven cases in which
the people may have real action against the
king to accuse and punish. (1.) They may
punish the king to death, for matters capi-
tal, if so it be agreed on betwixt the king
and the people, as in Lacedaemonia. (2.)
He may be punished as a private man. (3.)
If the king make away a kingdom given to
him by succession, his act is null, and he
may be resisted, because the kingdom is a
life-rent only to him ; yea, saith Barclay,
he loseth the crown. (4.) He loseth his
kingdom, if, with a hostile mind, he seek
the destruction of the kingdom. (5.) If
such a clause be put in, that if he commit
felony, or do such oppressions, the subjects
shall be loosed from the bonds of subjec-
tion ; then the king, failing thus, turneth a
private man. (6.) If the king have the
THE LAW AND THE PRINT E.
201
one-half or part of the kingdom, and the
people or senate the other half; if the king
prey upon that half which is not his own,
he may violently be resisted, for in so far
he hath not the empire. (7.) If, when the
crown was given, this be declared, that in
some cases he may be resisted, then some
natural liberty is free from the king's power,
and reserved in the people's hand. 4. It
is then reason that the king swear an oath,
1. That the king's oath is but a ceremony
to please the people, and that because he is
king, and king by birth, therefore he swear-
eth, and is crowned, is in question, and de-
nied. No man is born a king, as no man
is born a subject ; and because the people
maketh him king, therefore he is to swear.
The council of Toledo saith, non antea con-
scendat regiam sedem quam juret. 2. An
oath is a religious obligation, no arbitrary
ceremony. 3. He may swear in his cabi-
net-chamber, not covenanting with the peo-
ple, as David and Jehoash did. 4. So he
maketh promises that he may be king, not
because he is king ; it were ridiculous he
should promise or swear to be a just king,
because he is a just king ; and by the same
reason the estates swear the oath of loyalty
to the new king, not that they may be loyal
in all time coining, but because they are
loyal subjects already ; for if the one-half of
the covenant on the king's part be a cere-
mony of indulgence, not ot necessity, by
the same reason the other half of the cove-
nant must be a ceremony of indulgence also
to the people.
Obj. — Arnisseus saith, A contract cannot
be dissolved in law, but by consent of two par-
ties contracting, because both are obliged ;
(I. ab emptione 58, in pr. de pact. I. 3, de
rescind, vend. 1. 80, de solu ;) therefore, if
the subjects go from the covenant that they
have made to be loyal to the king, they
ought to be punished.
Ans. — A contract, the conditions whereof
are violated by neither side, cannot be dis-
solved but by the joint consent of both ;
and in buying and selling, and in all con-
tracts unviolated, the sole will of neither
side can violate the contract : of this speak-
eth the law. But I ask the royalists, if
the contract betwixt the spies sent to view
Jericho, and Rahab the harlot, had not
been null, and the spies free from any obli-
gation, if Rahab had neglected to keep
within doors when Jericho was taken, though
Rahab and the spies had never consented
expressly to break the covenant ? We hold
that the law saith with us, that vassals loss
their farm if they pay not what is due.1
Now, what are kings but vassals to the
state, who, if they turn tyrants, fall from
their right ?
Arniseeus saith in the council of Toledo,
(4. c. 47,) the subjects ask from the king,
that kings would be meek and just, not
upon the ground of a voluntary contract
and paction, but because God shall rejoice
in king and people by so doing.2
Ans. — These two do no more fight with
one another than that two merchants should
keep faith one to another, both because God
hath said he shall dwell in God's mountain
who sweareth and covenanteth, and stand-
eth to his oath and covenant, though to his
loss and hurt, (Psal. xv.) and also because
they made their covenant and contract thus
and thus.
Arnisceus. — Every prince is subject to
God, but not as a vassal ; for a master may
commit felony, and lose the propriety of his
farm. Can God do so ? The master can-
not take the farm from the vassal without
an express cause legally deduced ; but can-
not God take what he hath given but by a
law process ? A vassal can entitle to him-
self a farm against the master's will, as some
jurists say, but can a prince entitle a king-
dom to himself against the God of heaven's
will? Though we grant the comparison,
yet the subjects have no law over the kings,
because the coercive power of the vassal is
in the lord of the manor, the punishing of
kings belongeth to God.
Ans. 1. — We compare not the lord of a
manor and the Lord of heaven together;
all these dissimilitudes we grant, but as the
king is God's vassal, so is he a noble and
princely vassal to the estates of a kingdom
because they make him. 2. They make
him rather than another their noble ser-
vant. 3. They make him for themselves
and their own godly, quiet, and honest
life. 4. They, in then- first election, limit
him to such a way, to govern by law, and
give to him so much power for their good,
no more ; in these four actst hey are above
the prince, and so have a coercive power
over him.
Arnisceus. — It is to make the prince's
fidelity doubtful to put him to an oath.
i Bartol. in 1. 1, n. 4, de his qui not. infam.
- Amis., c. 6, an priuceps qui jurat subditis, &c.
2e
202
LEX, REX ; OR,
Lawyers say there is no need of an oath,
when a person is of approved fidelity.
Ans. 1. — Then we are not to seek an
oath of an inferior magistrate, of a com-
mander in wars, of a pastor, it is presumed
these are of approved fidelity, and it maketh
their integrity obnoxious to slander to put
them on an oath. 2. David was of more
approved fidelity than any king now a-days,
and to put him to a covenant seemed to
call his fidelity in question ; Jonathan
sought an oath of David to deal kindly
with his seed when he came to the throne ;
Jeremiah sought an oath of the king of
Judah. Did they put any note of falsehood
on them therefore ?
Arnisceus. — You cannot prove that ever
any king gave an oath to his subjects in
Scripture.
Ans. 1. — What more unbeseeming kings
is it to swear to do their duty, than to pro-
mise covenant-wise to do the same ? And
a covenant you cannot deny. 2. In a
covenant for religious duties there was
always an oath, (2 Chron. xv. 12 — 14,)
hence the rite of cutting a calf, and swear-
ing in a covenant (Jer. xxxiv. 18). 3.
There is an oath that the people giveth to
the king to obey him, (Eccles. viii. 2,) and
a covenant (2 Sam. v. 1 — 3) mutual be-
tween the king and people ; I leave it to
the judicious, if the people swear to the
king obedience in a covenant mutual, and
he swear not to them.
Arnisaeus showeth to us a third sort of oath
that limited princes do swear. This oath
in Denmark, Sweden, Poland, Hungary, is
sworn by the kings, who may do nothing
without consent of the senate, and according
to order of law ; this is but the other two
oaths specified, and a prince cannot con-
travene his own contract ; the law saith, in
that the prince is but as a private man (in
I. digna vox C. de 11. Rom. cons. 426, n.
17) ; and it is known that the emperor is
constituted and created by the prince's elec-
tors, subject to them, and by law may be
dethroned by them.
The Bishop of Bothester (de potest, p. 1. 2,
c. 20) saith from Barclay, " IS one can de-
nude a king of his power, but he that gave
him the power, or hath an express com-
mandment so to do, from him that gave the
power. But God only, and the people, gave
the king his power ; therefore God, with
the people, having an express commandment
from God, must denude the king of power.
Ans. 1. — T his shall prove that God only,
by an immediate action, or some having an
express commandment from him, can de-
prive a preacher for scandals ; Christ only,
or those who have an express commandment
from him, can excommunicate ; God only,
or the magistrate with him, can take away
the life of man (Nnmb. xi. 14 — 16); and
no inferior magistrates, who also have their
power from God immediately, (Bom. xiii.
1,) if we speak of the immediation of the
office, can denude inferior judges of their
power. God only, by the husbandman's
pains, maketh a fruitful vineyard, therefore,
the husbandman cannot make his vineyard
grow over with nettles and briers. 2. The
argument must run thus, else the assump-
tion shall be false. God only by the action
of the people as his instrument, and by no
other action, makes a lawful king ; God only
by the action of the people, as his instru-
ment, can make a king ; God only by the
action of the people, as his instrument, can
dethrone a king ; for as the people, making
a king, are in that doing what God doth
before them, and what God doth by them
in that very act, so the people unmaking a
king, doth that which God doth before the
people ; both the one and the other accord-
ing to God's rule obligeth. (Deut. xvii.
14—20.)
The Prelate, whose tribe seldom saith
truth, addeth, — " As a fatherly power, by
God and nature's law, over a family, was in
the father of a family before the children
could either transfer then- power, or consent
to the translation of that power to him, so
a kingly power (which succeedeth to a pa-
ternal or fatherly power) to govern many
families, yea, and a kingdom, was in that
same father, in relation to many families,
before these many families can transfer
their power. The kingly power floweth
immediately from God, and the people
doth not transfer that power, but doth
only consent to the person of the king, or
doth only choose his person at some time.
And though tliis power were principally
given to the people, it is not so given to
the people as u it were the people's power,
and not God's, for it is God's power ; nei-
ther is it any otherwise given to the people,
but as to a stream, a beam, and an instru-
ment which may confer it to another."
M. Antonius (de domini. I. 6, c. 2, n. 22,
23) doth more subtlely illustrate the mat-
ter : " If the king should confer honour on
THE LAW AND THE PRINCE.
203
a subject, by the hand of a servant who had
not power or freedom to confer that honour,
or not to confer it, but by necessity of the
king's commandment must confer it, no-
thing should hinder us to say, that such a
subject had his honour immediately from
the king : so the earth is immediately
illuminated by the sun, although light be
received on the earth, but by the interven-
ing mediation of many inferior bodies and
elements, because by no other thing but
by the sun only, is the light as an efficient
cause in a nearest capacity to give light ; so
the royal power in whomsoever it be, is
immediately from God only, though it be
applied by men to this or that person, be-
cause from God only, and from no other
the kingly power is formally and effectively
that which it is, and worketh that which it
worketh ; and if you ask by what cause is
the tree immediately turned into fire, none
sound in reason would say, it is made fire,
not by the fire, but by him that laid the
tree on the fire." John P. P. would have
stolen this argument also, if he had been
capable thereof.
Ans. 1. — A fatherly power is in a father,
not before he hath a child, but indeed be-
fore his children by an act of their free-will
consent that he be their father ; yea, and
whether the children consent or no, from a
physical act of generation, he must be the
father ; and let the father be the most
wicked man, and let him be made by no
moral requisite, yet is he made a father,
nor can he ever leave off physically to be a
father : he may leave off morally to do the
duty of a father, and so be non pater officio,
but he cannot but be pater natural gener-
antis vi. So there never is, nor can be,
any need that chddren's free consent inter-
vene to make Kish the father of Saul, be-
cause he is by nature a father. To make Saul
a king and a moral father by analogy and
improperly, — a father by ruling, governing,
guiding, defending Israel by good laws, in
peace and godliness, I hope there is some
act of the people's free-will required even
by Spalato's way ; the people must approve
him to be king, yea, they must king him, or
constitute him king, say we. No such act is
required of natural sons to make a physical
father, and so here is a great halt in the
comparison, and it is most false that there
is a kingly power to govern many families
in the same father, before these many
families can transfer their power to make
him king. Put royalists to their logic, they
have not found out a medium to make good
that there is a formal kingly power whereby
Saul is king and father morally over all
Israel before Israel chose him and made
him, as Kish was Saul's father formally, and
had a fatherly power to be his father, before
Saul had the use of free-will to consent that
he should be his father. Royalists are here
at a stand. The man may have royal gifts
before the people make him king, but this
is not regiapotcstas, a royal power, by which
the man is formally king. Many have more
royal gifts than the man that beareth the
crown, yet are never kings, nor is there
formally regia potestas, kingly power, in
them. In this meaning Petrarch said,
Plures sunt reges quam regna. 2. He
saith, " The people doth not confer royal
power, but only consent to the person of the
man, or choice of his person." This is non-
sense, for the people's choosing of David at
Hebron to be king, and their refusing of
Saul's seed to be king, what was it but an
act of God, by the free suffrages of the
people, conferring royal power on David,
and making him king ? Whereas in former
times, David even anointed by Samuel at
Bethlehem, (1 Sam. xvi,)was only a private
man, the subject of king Saul, and never
termed by the Spirit of God a king ; nor
was he king till God, by the people's con-
sent made him king at Hebron; for Samuel
neither honoured him as king, nor bowed to
him as king, nor did the people say, God
save king David ; but after this David ac-
knowledged Saul as his master and king.
Let royalists show us any act of God making
David king, save this act of the people mak-
ing him formally king at Hebron, and there-
fore the people, as God's instrument, trans-
ferred the power, and God by them in the
same act transferred the power, and in the
same they chose the person ; the royalists
affirm these to be different actions, affir-
mant incumbit probatio. 3. This power is
the people's radically, naturally, as the bees
(as some think) have a power natural to
choose a king-bee, so hath a community a
power naturally to defend and protect
themselves; and God hath revealed in
Deut. xvii. 14, 15, the way of regulating
the act of choosing governors and kings,
which is a special mean of defending and
protecting themselves ; and the people is as
principally the subject and fountain of royal
power, as a fountain is of water. I shall not
204
LEX, REX : OR,
contend, if you call a fountain God's instru-
ment to give water, as all creatures are his
instruments. 4. For Spalato's comparison,
he is far out, for the people choosing one
of ten to be their king, have free will to
choose any, and are under a law (Deut.
xvii. 14, 15) in the manner of their choos-
ing, and though they err and make a sinful
choice, yet the man is king, and God's king,
whom they make king; but, if the king
command a servant to make A. B. a knight,
if the servant make C. D. a knight, I shall
not think C. D. is a valid knight at all ; and
indeed the honour is immediately here from
the king, because the king's servant by no
innate power maketh the knight, but nations
by a radical, natural, and innate power,
maketh this man a king, not that man ;
and I conceive the man chosen by the
people oweth thanks and grateful service to
the people, who rejected others, that they
had power to choose, and made him king.
5. The light immediately and formally is
light from the sun, and so is the office of a
king immediately instituted of God, Deut.
xvii. 14. Whether the institution be na-
tural or positive, it is no matter. 2. The
man is not king, because of royal endow-
ments, though we should say these were
immediately from God, to which instruction
and education may also confer not a little ;
but he is formally king, ratione VfaAtmt
/W/X/xu; in regard of the formal essence of
a king, not immediately from God, as the
light is from the sun, but by the mediation
of the free consent of the people; (2 Sam. v.
1 — 3 ;) nor is the people in making a king,
as the man who only casteth wood in the
fire ; the wood is not made fireTormally, but
by the fire, not by the approach of fire to
wood, or of wood to fire ; for the people do
not apply the royalty, which is immediately
in and from God to the person. Explicate
such an application ; for to me it is a fiction
inconceivable, because the people hath the
royalty radically in themselves, as in the
fountain and cause, and conferreth it on the
man who is made king ; yea, the people, by
making David king, confer the royal power
on the king. This is so true, that royalists,
forgetting themselves, inculcate frequently
in asserting their absolute monarch from
Ulpian, but misunderstood that the people
have resigned all their power, liberty, right
of life, death, goods, chastity, a potency of ra-
pine, homicides, unjust wars, &c, upon a crea-
ture called an absolute prince ; even, saith
Grotius, as a man may make himself a slave,
by selling his liberty to a master. Now,
if the people make away this power to the
king, and this be nothing but the tran-
scendent absoluteness of a king, certainly
this power was in the people ; for how can
they give to a king that which they have
not themselves ? As a man cannot make
away his liberty to a master, by becoming
a slave to him, if his liberty were imme-
diately in God, as royalists say, sovereignty
is immediately in God, and people can ex-
ercise no act about sovereignty, to make
it over to one man rather than to another.
People only have an after-approbation, that
this man to whom God hath given it imme-
diately, shall have it. Furthermore, they
say, people in making a king may make
such conditions, as in seven cases a king
may be dethroned, at least resisted, saith
Hugo Grotius : therefore people may give
more or less, half or whole, limited or ab-
solute royal power to the prince ; but if this
power were immediately in God and from
God, how could the people have the hus-
banding of it, at their need to expend it
out in ounce weights, or pound weights, as
they please ? And that the people may be
purveyors of it to sell or give it, is taught
by Grotius {de jwr. bel et pac. I. 1, c. 4) ;
Barclay (advcrs. monarch. I. 4, c. 6) ; Ar-
nisaeus (c. 6, de majest. an princeps qui
jurat subditis, fyc. n. 10, n. se Aventium
Anal. I. 3) ; Ohytreus (I. 23, I. 28) ; Saxon
Sleidan {lib. 1, in fi) ; yet Arnisaeus is not
ashamed to cite Aristot. [polit. c. 12, I. 3),
that he is not a true and absolute king who
ruleth by laws. The point blank contrary
of which Aristotle saith.
QUESTION XLI.
WHETHER DOTH THE P. PRELATE UPON GOOD
GROUNDS ASCRIBE TO US THE DOCTRINE OF
JESUITS IN THESE QUESTIONS OF LAWFUL
DEFENSIVE WARS.
The P. Prelate, without all ground, will
have us all Jesuits in this point, but if we
make good that this truth was in Scripture
before a Jesuit was in the earth, he falleth
from his cause.
P. Prelate (c. 1, p. 1, 2).— The Begardi
saith, There was no government, no law
given to the just. It feareth me this age
THE LAW AND THE PRINCE.
205
fancieth to itself some such thing, and have
learned of Korah, Dathan, &c.
Ans. — This calumniator, in the next
words, belieth himself when he saith, We
presuppose that those with whom we are to
enter in lists, do willingly grant that govern-
ment is not only lawful and just, but ne-
cessary both for church and commonwealth:
then we fancy no such thing as he imput-
eth to us.
P. Prelate. — Some said that the right of
dominion is founded on grace, whether the
Waldenses and Huss held any such tenet, I
cannot now insist to prove or disprove. Ger-
son and others held that there must be a new
title and right to what men possess. Too
many too confidently hold these or the like.
Ans. — 1. That dominion is founded upon
grace as its essential pillar, so as wicked
men be no magistrates, because they are in
mortal sin, was falsly imputed to ancient
protestants, the Waldenses, WiclifF, and
Huss, by papists ; and this day by Jesuits,
Suarez, Bellarmine, Becanus. The P. Pre-
late will leave them under this calumny,
that he may offend papists and Jesuits as
little as he can, but he would lay it on us ;
but if the P. Prelate think that dominion
is not founded on grace, de jure, that rulers
should have that spirit that God put on the
seventy elders for their calling, and that
they ought not to be " men fearing God and
hating covetousness," as Gerson and others
did, he belieth the Scripture. 2. It is no
error of Gerson that believers have a sip-
ritual right to their civil possessions, but by
Scripture, 1 Cor. iv. 21 ; Rev. xxi. 7-
P. Prelate. — The Jesuits are ashamed of
the error of casuists, who hold that, directum
imperium, the direct and primary power,
supreme, civil, and ecclesiastical, is in the
Pope ; and, therefore, they give an indirect
directive and coercive power to him over
kings and states, in ordine ad spiritualia,
so may he king and unking princes at his
pleasure. Our presbyterians, if they run
not fully this way, are very near to it.
Ans. — 1. The windy man would seem
versed in schoolmen. He shoidd have
named some casuists, who hold any like
thing. 2. The presbyterians must be popes,
because they subject kings to the gospel,
and Christ's sceptre in church censures, and
think Christian kings may be rebuked for
blasphemy, bloodshed, &c, whereas prelates,
in ordine ad diabolica, murder souls of
kings. 3. Prelates do king princes. A
popish archprelate, when our king was
crowned, put the crown on king Charles'
head, the sword and sceptre in his hand,
anointed him in his hands, crown, shoul-
ders, arms, with sacred oil. The king must
kiss the archbishop and bishops. Is not this
to king princes in ordine ad spiritualia'i
And those that kingeth may unkino-, and
judge what relation the popish archbishop
Spotswood had, when he proffered to the
king the oath that the popish kinos swear-
eth to maintain the professed religion, (not
one word of the true protestant religion,) and
will carefully root out all heretics and ene-
mies (that is protestants as they expone it)
to the true worship of God, that shall be
convicted by the church of God of the fore-
said crimes. And when the prelates pro-
fessed they held not their prelacies of the
king, but of the Pope indeed : who are then
nearest to the Pope's po-A-er, in ordine ad
spiritualia? 4. How will this black-mouthed
calumniator make presbyterians to dethrone
kings i He hath written a pamphlet of
the inconsistency of monarchy and presby-
terian government, consisting of lies, in-
vented calumnies of his church in which he
was baptized. But the truth is, all his ar-
guments prove the inconsistency of monarchs
and parliaments, and transform any king in-
to a most absolute tyrant; for which treason
he deserveth to suffer as a traitor.
P. Prelate (q. 1, c. 1). The puritan
saith that all power civil is radically and
originally seated in the commnnity ; he here
joineth hands with the Jesuit.
Ans. — In six pages he repeateth the same
things, 1. Is this such an heresy, that a
colony cast into America by the tyranny
of popish prelates, have power to choose
their own government ? All Israel was he-
retical in this ; for David could not be their
king, though designed and anointed by God,
(1 Sam. xvi.,) till the people (2 Sam. v.)
put forth in act this power, and made Da-
vid king in Hebron. 2. Let the Prelate
make a syllogism, it is but ex utraque af-
Jirmante in secunda figura, logic like the
bellies of the court, in which men of their
own way is disgraced and cast out of grace
and court; because in this controversy of
the king with his two parliaments, they are
like Erasmus in God's matters, who said,
Lutherum nee accuso, nee defendo. He
is discourted, whoever he be, who is in
shape like a puritan, and not fire and sword
against religion and his country, and oath
206
LEX, REX ; OR,
and covenant with God ; and so it is this :
The Jesuit teacheth that power of govern-
ment is in the community originally. The
puritan teacheth, that power of government
is in the community originally ; therefore,
the puritan is a Jesuit. But so the puritan
is a Jesuit, because he and the Jesuit teach-
eth that there is one God and three per-
sons. And if the Prelate like this reason-
ing, we shall make himself and the pre-
lates, and court-divines, Jesuits upon surer
grounds.
1. Jesuits teach, (1.) The Pope is not the
antichrist. (2.) Christ locally descended to
hell to free some out of that prison. (3.) It
was sin to separate from Babylonish Rome.
(4.) We are justified by works. (5.) The
merit of fasting is not to be condemned.
(6.) The mass is no idolatry. (7.) The
Church is the judge of controversies. (8.)
All the Arminian points are safer to be be-
lieved, than the contrary ; yea, and all the
substantiate of popery are true, and catholic
doctrine to be preached and |printed. 2.
The prelates and court-divines, and this
Prelate, conspireth in all these with the
Jesuits, as is learnedly and invincibly proved
in the treatise, called ivr^aranolffis, the Can-
terburian self-conviction ; to which no man
of the prelatical and Romish faction durst
ever make answer for their hearts ; and see
then who are Jesuits. 3. This doctrine was
taught by lawyers, protestants, yielded to by
papists, before any Jesuit was whelped in
rerum natura. Never learned man wrote
of policy, till of late, but he held power of
government, by the light of nature, must
be radically and originally in a community.
The P. Prelate saith, Jesuits are not the
fathers of this opinion (c. 1, p. 12). How
then can the liar say, that the puritan
conspireth with the Jesuit ? Suarez, the
Jesuit, (de primat. sum. pontifi. I. 3, c. 2,
n. 10,) Non est novum, aut a Cardinali
Bcllarmino inventum. The Jesuit Tanne-
rus, will not have their family the mother of
this opinion, (torn 2, disp. 5, de leg, q. 5,
in 12, q. 95, 96 ,• Dubi. 1, n. 7). Sine du-
bio communis omnium Theologorum et Ju-
risperitorum sententia, fyc The Jesuit To-
let, (in Rom. xiii.,) taketh it for a ground,
that the civil powers are from God, by the
natural mediation of men, and civil socie-
ties. 4. Jesuits teach that there is no
lawful Christian society, truly politic, that
hath a near and formal power to choose and
ordain their own magistrates, but that which
acknowledged subjection, and the due re-
gulation of their creating of magistrates, to
be due and proper to the Pope5 of Rome.
We acknowledge nowise the bishop of Rome,
for a lawful bishop and pastor at all. But
this popish Prelate doth acknowledge him,
for he hath these words, (c. 5, p. 58,) " It
is high presumption in the Pope to chal-
lenge to himself the title or right of Christ's
universal vicar on earth, by divine right.
The Pope, the bishop of Rome, hath°no
more by divine right, (what he may have
by positive ecclesiastical right is not perti-
nent for us now to examine and discuss,) no
higher privilege, (except it be in extent,)
than the meanest bishop of the world in his
diocese." And amongst all proofs, he pass-
ing by Scriptures, which should prove, or
improve a divine right, he will content him-
self with one proof of Cyprian, (de unitat.
Eccles.,) and endeth with these words, —
" Would God, both sides in this, and other
controversies, would submit to the judgment
of the holy fathers."
1. Hence the P. Prelate, in his fourth
article, (the other two I shall touch anon,)
maketh puritans grosser than Jesuits, in
dethroning kings ; because if the king be de-
ficient, the people may resume their power,
and govern for him, and so dethrone the
king. But Bellarmine (I. 3, q. de laic.)
holdeth the people cannot dethrone the
king, but, in certis casibus, in some cases,
that is, (as Suarez saith,) si Rex sua potes-
tate in manifestam, (Civitatis ceu Regni,)
perniciem abutatur. But I will demon-
strate, that if papists hold that the Pope
may dethrone kings, this Prelate is of their
mind ; for, 1. The words I cited make good
that he is for the Pope's supremacy ; (now
it is a joint or part of his supremacy, to
king and unking princes.) 2. They make
good that he is a papist ; for, 1. It is pre-
sumption in the Pope to challenge to him-
self that he is Christ's universal vicar on
earth, by divine right. Why saith he not,
by no right at all, but only he is not Christ's
vicar by divine right ; for it is evident, that
papists make him Christ's vicar only by ec-
clesiastical right ; for they profess succes-
sion of popes to this day cannot be proved
but by tradition, not by Scripture.
2. The Pope's supremacy, by papists, is
expressly reckoned amongst unwritten tra-
ditions, and so there is no necessity that the
right of it be proved from Scripture.
3. The Prelate expressly saith, " He will
THE LAW AND THE PRINCE.
207
not discuss the ecclesiastical right that the
Pope hath to be Christ's vicar ;" and by
that he clearly insinuateth that he hath a
right to be Christ's vicar, besides a scriptu-
ral and divine right; only, for offending
papists, he will not discuss it.
•i. He hath no higher privilege, saith he,
than other bishops, except in extent, by di-
vine right. Now other bishops, as officers,
in nature different from presbyters, (for of
such the P. Prelate must speak in his own
dialect,) have their office by divine right ;
and this the Prelate's word must include,
else he saith nonsense to the matter in hand.
And, in extent, the Pope hath, by divine
right, more than other bishops have. Now
what is the Pope of Rome's extent ? All
know it is the whole catholic visible church
on earth. If then, all bishops be particular
ambassadors in Christ's stead, (2 Cor. v. 20,)
and so legates and deputies of Christ, he who
by divine right is a bishop in extent over the
whole world, is as hke one that calleth him-
self the universal vicar of Christ, as one egg
is like another. The doctrine taught by this
Prelate, so popish, and hints, yea, are more
than evidences, of gross popery in this book,
and his other pamphlet against presbyteries.
And his desire that the controversy, concern-
ing the Pope's supremacy and others, were
determined with submission to the judgment
of the fathers, do cry that he is but a rot-
ten papist. 1 or why will he submit all other
controversies to the judgment of the fathers?
Why not to the prophets and apostles ? Can
lathers decide controversies better than the
Word of God ? A reason cannot be dreamed
of why the fathers should be judges, and not
the Scriptures, except that the Scriptures are
obscure. Their authority and light cannot
determine and judge controversies, except
in so far as they have authority from fathers
and the church ; and we know this to be pro-
jjrium quarto modo, proper to Jesuits and
papists, to cry, lathers, lathers, in all contro-
versies, though the fathers be more for us
than for them, except two things : — 1. What
fathers speak for us, are corrupted by them.
2. What were but errors in lathers, when
children add contumacy to error, becomes
the heresies of the sons.
And it is most false that we join with Je-
suits. 1. We teach no more against tyrants,
in exercitio, than Grotius, Barclay, and Win-
zetus, in the matter of deposing kings ; and
in this, royalists conspire with Jesuits. 2.
We deny that the Pope may loose subjects
from the oath of fidelity when a king turn-
eth heretical. 3. That people, at the Pope's
commandment, are to dethrone kings for he-
resy ; so do the prelates, and their fellows,
the papists, teach; so Gregory VII. prac-
tised ; so Aquinas taught, (22 q. 12. ar. 2.)
Antonin, [sum. par. 3. t. 22, c. 3, sect. 7,)
" Thou hast put all things under the Pope's
feet," oves, id est, Christianos ; boves. Ju-
dceos et hereticos ; pecora, Paganos ; so
Navar. (I. 1, c. 13,) Pagans have no juris-
diction. Jaco. Symanca, (de Catho. Instit.
tit. 45, n. 25,) " Catholica uxor heretico
viro debitum reddere non tenetur." Item,
Constat, hcereticum privatum esse omnido-
minio, naturali, civili, politico, naturali
quod habet in filios, nam propter hceresin
patris ejjiciuntur jilii sui juris, civili, quod
habct in servos, ab eo enim scrvi liberantur,
politico, quod rerum domini habcnt in sxtb-
ditos, ita Bannes, (22. q. 12, art. 10.) Gre-
gor. (de valent. 22. dis. 1, q. 12, p. 2, lod.
Mol. to. 1, de just, et jur. tract. 2, dis. 29,
v. 3.) Papists hold that generatio clerici
est corruptio subditi, churchmen are not
subjects under the king's law. It is a cano-
nical privilege of the clergy, that they are
not subject to the king's civd laws. Now
this Prelate and his fellows made the kino-
swear, at his coronation, to maintain all ca-
nonical privileges of the prelatical clergy,
the very oath and words sworn by all the
popish kings.
P. Prelate. — Power is given by the mul-
titude to the king immediately, and by God
mediately, not so much by collation, as by
approbation, how the Jesuit and puritan
walk all along in equal pace. See Bellar-
mine, 1.1. de liac. c. 6. Suarez cont. sect.
Angl. I. 2. c. 3.
Ans. — It is a calumny that we teach that
the power of the king is from God mediate-
ly, by mere approbation ; indeed, a fellow
of has, a papist, writing against the king's
supremacy, Anthony Capell saith,1 Saul was
made king, and others also, by God's per-
mission, and Deo invito et irato, God being
angry, that is not our doctrine; but with
what real efficiency God hath made men
and communities rational and social men
with the same hath he made them by in-
stinct of nature, by the mediation of reason,
to create a king ; and Bellarmine and Sua-
rez say not God maketh kings by approba-
tion only.
1 Tract, contra primatura Regis Anglise.
208
LEX, REX :
/'"
P. Prelate. — The people may change mo-
narchy into aristocracy or democracy, or aris-
tocracy into monarchy ; for aught I know,
they differ not in this neither.
Ans. 1. — The P. Prelate knoweth not all
things — the two Jesuits, Bellarmine and
Suarez are produced only, as if they were
all Jesuits; and Suarez saith, (De prim.
I. 3, n. 4,) " Donationem absolutam
valide factam rcvocari non posse, ne-
que in totum, neque ex parce, maxime
quando onerosa fuit," If the people once
give their power to the king, they cannot
resume it without cause ; and laying down
the grounds of Suarez and other Jesuits,
that our religion is heresy, they do soundly
collect this consequence, " That no king can
be lord of the consciences of their subjects,
to compel them to an heretical religion."
We teach that the king of Spain hath no
power over the consciences of protestant
subjects to force them to idolatry, and that
then- souls are not his subjects, but only their
persons, and in the Lord. 2. It is no great
crime, that if a king degenerate in a tyran-
ny, or if the royal line fail, that we think the
people have liberty to change monarchy into
aristocracy, aut contra. Jesuits deny that
the people can make this change -without
the Pope's consent. We judge neither the
great bishop, the Pope, nor the little popes,
ought to have hand in making kings.
P. Prelate. — They say the power is de-
rived to the king from the people, comula-
tive or communicative, non privative, by
way of communication, not by way of priva-
tion, so as the people denude not themselves
of this sovereignty. As the king maketh a
lieutenant in Ireland, not to denude him-
self of his royal power, but to put him in
trust for his service. If this be then- mind,
the king is in a poor case. The principal
authority is in the delegate, and so the peo-
ple is still judge, and the king their deputy.
Ans. — The P. Prelate taketh on him "to
write, he knoweth not what, this is not our
opinion. The king is king, and hath the
people's power, not as then- deputy.
1. Because the people is not principal
judge, and the king subordinate. The
kino-, in the executive power of lawys, is
really a sovereign above the people; a de-
puty is not so.
2. The people have irrevocably made over
to the king their power of governing, de-
fending, and protecting themselves, I ex-
cept the power of sell-preservation, which
people can no more make away, it being sin-
less nature's birthright, than the liberty of
eating, drinking, sleeping ; and this the
people cannot resume, except in case of the
king's tyranny ; there is no power by the
king so irrevocably resigned to his servant
or deputy, but he may use it himself.
3. A delegate is accountable for all he
doth to those that put him in trust, whether
he do ill or well. The king, in acts of jus-
tice, is not accountable to any ; for if his
acts be not liable to high suspicions of ty-
ranny, no man may say to him, What dost
thou ? only in acts of injustice ; and those
so tyrannous, that they be inconsistent with
the habitual fiduciary repose and trust put
on him, he is to render accounts to the par-
liament, which representeth the people.
4. A delegate in esse, in fieri, both that
he may be a delegate, and that he may con-
tinue a delegate, whether he do ill or well,
dependeth on his pleasure who delegateth
him ; but though a king depend in fieri, in
regard of iiis call to the crown, upon the suf-
frages of his people, yet that he may be con-
tinued king, he dependeth not on the people
simply, but only in case of tyrannical admi-
nistration, and in this sense Suarez and Bel-
larmine spake with no more honesty than
we do, but with more than prelates do, for
they profess any emissary of hell may stab a
protestant king. We know the prelates pro-
fess the contrary, but their judgment is the
same with Jesuits in all points ; and since
they will have the Pope Christ's vicar, by
such a divine right as they themselves are
bishops, and have the king under oath to
maintain the clergy, bishops, and all their
canonical privileges, (amongst which the bi-
shops of Home's indirect power in ordine
ad spiritualia, and to dethrone kings who
turn heretics, is one principal right,) I see
not how prelates are not as deep in treason
against kings as the Pope himself, and there-
fore, P. Prelate, take the beam out of your
own eye.
The P. Prelate taketh unlearned pains to
prove that Gerson, Occam, Jac. de Almaine,
and the Parisian doctors, maintained these
same grounds anent the people's power over
kings in the case of tyranny, and that before
Luther and Calvin were in the world; and
this is to give himself the he, tint Luther,
Calvin, and we, have not this doctrine from
Jesuits; and what is Calvin's mind is evi-
dent, (Instit. 1. 4, c. 4,) all that the estates
may coerce, and reduce in order a tyrant,
THE LAW AND THE l'RIXCE.
20!)
else they arc deficient in their trust that
God hath given them over the common-
wealth and church ; and this is the doc-
trine for which royalists cry out against
Knox of blessed memory, Buchanan, Junius
Brutus, Bouchier, Rossaeus, and Althusius.
Luther, in scripto ad pastorem, (torn. 7,
German, fol. 386,) bringeth two examples
for resistance ; the people resisted Saul, when
he was willing to kill Jonathan his son, and
Ahikam and other princes rescued Jeremiah
out of the hands of the king of Judah ; and
Gerardus citeth many divines who second
Luther in this, as Bugenliagius, Justus
Jonas, Nicholas Ambsderfrius, George Spa-
latinus, Justus Menius, Christopher Hof-
manus. It is known what is the mind of
protestant divines, as Beza, Pareus, Me-
lancthon, Bucanus, Polanus, Chamer, and all
the divines of France, of Germany, and of
Holland. No wonder than prelates were
upon the plot of betraying the city of
Rochelle, and of the protestant church there,
when they then will have the protestants
of France, for their defensive wars, to be
rebels, and siders with Jesuits, when, in
these wars, Jesuits sought their blood and
ruin.
The P. Prelate having shown his mind
concerning the deposing of Childerick by the
Pope, (of which I say nothing, but the Pope
was an antichristian usurper, and the poor
man never fit to bear a crown,) he goeth on
to set down an opinion of some mute au-
thors ; he might devise a thousand opinions
that way, to make men believe he had been
in a world of learned men's secrets, and that
never man saw the bottom of the contro-
versy, while he, seeing the escapes of many
pens, (as supercilious Bubo praiseth,) was
forced to appear a star new risen in the fir-
mament of pursuivants, and reveal all
dreams, and teach all the new statists, the
Gamaliels, Buchanan, Junius Brutus, and a
world who were all sleeping, while this
Lucifer, the son of the night, did appear,
tins new way of laws, divinity, and casuists'
theology.
P. Prelate. — They hold sovereign power
is primarily and naturally in the multitude,
from it derived to the king, immediately
from God. The reason of which order is,
because we cannot reap the fruits of govern-
ment unless by compact we submit to some
possible and accidental inconveniences.
Ans. 1. — Who saith so the P. Prelate
cannot name, — That sovereign power is pri-
marily and naturally in the multitude. Vir-
tually (it may be) sovereignty is in the mul-
titude, but primarily and naturally, as heat
is in the fire, light in the sun, I think the
P. Prelate dreamed it ; no man said it but
himself; for what attribute is naturally in a
subject, I conceive may directly and natu-
rally be predicated thereof. Now the P.
Prelate hath taught as this very natural pre-
dication. " Our dreadful and sovereign
lord, the multitude, commandeth this and
that."
2. This is no more reason for a mo-
narchy than for a democracy, for we can
reap the fruits of no government except we
submit to it.
3. We must submit in monarchy (saith
he) to some possible and accidental incon-
veniences. Here be soft words, but is sub-
version of religion, laws, and liberties of
church and state. Introducing of popery,
Arminianism, of idolatry, altar-worship, the
mass, (proved by a learned treatise, " the
Canterburian self-conviction," printed 1641,
third ed., never answered, couched under
the name of inconveniency,) the pardoning
of the innocent blood of hundreds of thou-
sand protestants in Ireland, the killing of
many thousand nobles, barons, commons,
by the hands of papists in arms against the
law of the land, the making of England a
field of blood, the obtruding of an idolatrous
service-book, with armies of men, by sea
and land, to block up the kingdom of Scot-
land, are all these inconveniences only ?
4. Are they only possible and accidental ?
But make a monarch absolute, as the P.
Prelate doth, and tyranny is as necessary
and as much intended by a sinful man, in-
clined to make a god of himself, as it is natu-
ral to men to sin, when they are tempted,
and to be drunken and giddy with honour
and greatness. Witness the kings of Israel
and Judah, though de jure they were not
absolute. Is it accidental to Nero, Julian,
to the ten horns that grew out of the wo-
man's head, who sat upon the scarlet co-
loured beast, to make war against the Lamb
and his followers, especially the spirit of
Satan being in them ?
P. Prelate. — They infer, 1. They cannot,
without violation of a divine ordinance and
breach of faith, resume the authority they
have placed in the king. 2. It were high
sin to rob authority of its essentials. 3.
This ordinance is not i.uyoi but iuhxuc and
hath urgent reasons.
2f
210
LEX, REX ; OR,
Ans. 1. — These nameless authors cannot
infer that an oath is broken which is made
conditionally ; all authority given by the
people to the king is conditional, that he use
it for the safety of the people ; if it be used
for their destruction, they break no faith to
resume it, for they never made faith to give
up their power to the king upon such terms,
and so they cannot be said to resume what
they never gave.
2. So the P. Prelate maketh power to
act all the former mischiefs, the essentials of
a king. Balaam is not worthy his wages
for prophesying thus, that the king's essen-
tials is a power of blood, and destructive to
people, law, religion, and liberties of church
and state, for otherwise we teach not, that
people may resume from the king autho-
rity and power to disarm papists, to root
out the bloody Irish, and in justice serve
them as they have served us.
3. This ordinance of the people, giving
lawful power to a king for the governing of
the people in peace and godliness, is God's
good pleasure, and hath just reasons and
causes. But that the people make over a
power to one man, to act all the inconve-
niences above named, I mean the bloody
and destructive inconveniences, hath nothing
of God or reason in it.
P. Prelate. — The reasons of this opinion
are : — 1. If power sovereign were not in one,
he could not have strength enough to act all
necessary parts and acts of government. 2.
Nor to prevent divisions which attend mul-
titudes, or many endowed with equal power ;
and the authors say, they must part with
their native right entirely for a greater
good, and to prevent greater evils. 3. To
resume any part of this power, of which the
people have totally divested themselves, or
to limit it, is to disable sovereignty from go-
vernment, loose the sinews of all society, &c.
Ans. 1. — I know none for this opinion,
but the P. Prelate himself. The first rea-
son may be made rhyme, but never reason :
for though there be not absolute power to
good and ill, there may be strength of
limited power in abundance in the king,
and sufficient for all acts of just government,
and the adequate end of government, which
is, salus populi, the safety of the people.
But the royalist will have strength to be a
tyrant, and act all the tyrannical and bloody
inconveniences of which we spake, an essen-
tial part of the power of a king ; as if weak-
ness were essential to strength, and a king
could not be powerful as a king, to do good,
and save and protect, except he had power
also as a tyrant to do evil, and to destroy
and waste his people. This power is weak-
ness, and no part of the image of the great-
ness of the Kin<j of kings, whom a king re-
presentetn.
2. The second reason condemneth de-
mocracy and aristocracy as unlawful, and
maketh monarchy the only physic to cure
these ; as if there were no government an
ordinance of God save only absolute mo-
narchy, which indeed is no ordinance of God
at all, but contrary to the nature of a lawful
king. (Deut. xvii. 3.)
3. That people must part with their native
right totally to make an absolute monarch,
is as if the whole members of the body
would part with their whole nutritive power,
to cause the milt to swell, which would be
the destruction of the body.
4. The people cannot divest themselves
of power of defensive wars more than they
can part with nature, and put themselves in
a condition inferior to a slave, who, if his
master, who hath power to sell him, invade
him unjustly, to take away his life, may op-
pose violence to unjust violence. And the
other consequences are null.
QUESTION XLII.
WHETHER ALL CHRISTIAN KINGS ARE DEPEN-
DENT FROM CHRIST, AND MAY BE CALLED
HIS VICEGERENTS.
The P. Prelate taketh on him to prove
the truth of this ; but the question is not
pertinent, it belongeth to another head, to
the king's power in church matters. I
therefore only examine what he saith, and
follow him.
P. Prelate. — Sectaries have found a query
of late, that kings are God's, not Clirist's
lieutenants on earth. Romanists and puri-
tans erect two sovereigns in every state, —
the Jesuit in the Pope, the puritan in the
presbytery.
Ans. 1. — We give a reason why God hath
a lieutenant, as God; because kings are
gods, bearing the sword of vengeance against
seditious and bloody prelates, and other ill
doers. But Christ, God-man, the Mediator
and head of the body — the church, hath
neither pope nor king to be head under him.
THE LAW AND THE PRINCE.
211
The sword is communicable to men ; but the
headship of Christ is communicable to no
king, nor to any created shoulders. 2.
The Jesuit maketh the Pope a king; and
so this P. Prelate maketh him, in extent,
the bishop of bishops, and so king, as I
have proved. But we place no sovereignty
in presbyteries, but a mere ministerial power
of servants, who do not take on them to
make laws and religious ceremonies, as pre-
lates do, who indeed make themselves kings
and lawgivers in God's house.
P. Prelate. — We speak of Christ as head
of the church. Some think that Christ was
king by his resurrection, jure acquisito, by
a new title, right of merit. I think he was
a king from his conception.
Ans. — 1. You declare hereby, that the
king is a ministerial head of the church,
under the head Christ. All our divines,
disputing against the Pope's headship, say,
No mortal man hath shoulders for so glo-
rious a head. You give the king such
shoulders. But why are not the kings,
even Nero, Julian, Nebuchadnezzar, and
Belshazzar, vicegerents of Christ, as media-
tor, as priest, as redeemer, as prophet, as
advocate, presenting our prayers to God his
father? What action, I pray you, have
Christian kings, by office, under Christ, in
dying and rising from the dead for us, in
sending down the Holy Ghost, preparing
mansions for us ? Now, it is as proper and
incommunicably reciprocal with the media-
tor to be the only head of the body, the
church, (Col. i. 18,) as to be the only re-
deemer and advocate of his church.
2. That Christ was king from his concep-
tion, as man born of the Virgin Mary, suit-
eth well with papists, who will have Christ,
as man, the visible head of the church ;
that so as Christ-man is now in heaven, he
may have a visible pope to be head in all
ecclesiastical matters. And that is the
reason why this P. Prelate maketh him
head of the church by an ecclesiastical
right, as we heard; and so he followeth
Becanus the Jesuit in tins, and others of his
fellows.
P. Prelate. — 1. Proof. If kings reign by
O per, in and through Christ, as the wisdom
of God and the mediator, then are kings
the vicegerents of Christ as mediator ; but
the former is said, Prov. viii. 15, 16 ; so Dr
Andrews, of blessed memory.
Ans. 1. — I deny the major. All believ-
ers living the life of God, engrafted in Christ
as branches in the tree, (John xv. 1, 2,)
should, by the same reason, be vicegerents
of the Mediator ; so should the angels to
whom Christ is a head, (Col. ii. 10,) be his
vicegerents ; and all the judges and consta-
bles on earth should be under-mediators,
for they live and act in Christ ; yea, all the
creatures, in the Mediator, are made new,
(Rev. xxi. 5 ; Rom. viii. 20—22.) 2. Dr
Andrew's name is a curse on the earth, his
writings prove him to be a popish apostate.
P. Prelate. — 2. Christ is not only king
of his church, but in order to his church,
King over the kings and kingdoms of the
earth. (Psal. ii. 5, 8.) 3. Matt. xxi. 18,
" To him is given all power in heaven and
earth ;" therefore, all sovereignty over kings.
Ans. 1. — If all these be Christ's vice-
gerents, over whom he hath obtained power,
then, because the Father hath given him
power over all flesh, to give them life eter-
nal, (John xvii. 1, 2,) then are all believers
his vicegerents, yea, and all the damned
men and devils, and death and hell, are his
vicegerents ; for Christ, as mediator, hath
all power given to him as king of the church,
and so power kingly over all his enemies,
" to reign until he make them his foot-
stool," (Psal. ex. 1, 2,) " to break them with
a rod of iron." (Psal. ii. 9 ; 1 Cor. xv. 24 —
27 ; Rev. i. 18, 20 ; v. 10—15.) And, by
that same reason, the P. Prelate's fourth
and fifth arguments fall to the ground, He is
heir of all things ; therefore, all things are
his vicegerents. What more vain ? He is
Prince of the kings of the earth, and King of
Ogs, of kings, of his enemies; therefore,
sea and land are his vicegerents.
P. Prelate (p. 58).— Kings are nurse-
fathers of the church, thereibre they hold
their crowns of Christ. Divines say, that
by men in sacred orders Christ doth rale
his church mediately in those things which
primely concern salvation, and that by
kings' sceptres and power he doth protect
his church, and what concerneth external
pomp, order, and decency. Then, in this
latter sense, kings are no less the immediate
vicegerents of Christ than bishops, priests,
and deacons, in the former.
Ans. 1. — Because kings hold their crowns
of Christ as mediator and redeemer, it fol-
loweth, by as good consequence, kings are
sub-mediators, and under-priests, and re-
deemers, as vicegerents. Christ, as king,
hath no visible royal vicegerents under him.
2. Men in holy orders, sprinkled with one
212
LEX, REX J OB,
of the papists' five blessed sacraments, such
as antichristian prelates, unwashed priests
to offer sacrifices, and popish deacons, are
no more admitted by Christ to enter into
his sanctuary as governors, than the leper
into the camp of old, and the Moabite and
Ammonite were to enter into the con-
gregation of the Lord (Deut. xxiii. 3) ;
therefore, we have excommunicated this P.
Prelate and such Moabites out of the Lord's
house. What be the things that do not
primely concern salvation, the P. Prelate
knoweth, to wit, images in the church, altar-
worship, antichristian ceremonies, which
primely concern damnation.
3. I understand not what the P. Prelate
meaneth, That the king preserveth external
government in order and decency. In Scot-
land, in our parliament, 1633, he prescribed
the surplice, and he commanded the service-
book, and the mass-worship. The Prelate
degradeth the king here, to make him only
keep or preserve the prelates' mass-clothes ;
they intended, indeed, to make the king but
the Pope's servant, for all they say and do
for him now.
4. If the king be vicegerent of Christ in
prescribing laws for the external ordering of
the worship, and all their decent symbolical
ceremonies, what more doth the Pope and
the prelate in that kind ? He may, with as
good warrant, preach and administer the
sacraments.
P. Prelate. — Kings have the sign of the
cross on their crowns.
Ans. — Therefore, baculus est in angulo,
prelates have put a cross in the king's heart,
and crossed crown and throne too. Some
knights, some ships, some cities and boroughs
do carry a cross; are they made Christ's
vicegerents of late ? By what antiquity doth
the cross signify Christ ? Of old it was a
badge of Christians, no religious ceremony.
And is this all ; the king is the vicegerent
of Christians. The prelates, we know, adore
the cross with religious worship; so must
they adore the crown.
P. Prelate. — Grant that the Pope were
the vicar of Christ in spiritual things, it fol-
loweth not — therefore, kings' crowns are
subject to the Pope ; for papists teach that
all power that was in Christ, as man, as
power to work miracles, to institute sacra-
ments, was not transmitted to Peter and his
successors.
Ans. — This is a base consequence ; make
the Pope head of the church, the king, if
he be a mixed person, that is, half a church-
man and Christ's vicegerent, both he and
prelates must be members of the head.
Papists teach that all in Christ, as man,
cannot be transmitted to Peter ; but a mi-
nisterial catholic headship (say Bucanus and
his fellows) was transmitted from Christ, as
man and visible head, to Peter and the
Pope.
P. Prelate. — I wish the Pope, who
claimeth so near alliance with Christ, would
learn of him to be meek and humble in
heart, so should he find rest to Iris own soul,
to church and state.
Ans. 1. — The same was the wish of Ger-
son, Occam, the doctors of Paris, the fathers
of the councils of Constance and Basil, yet
all make him head of the church.
2. The excommunicate Prelate is turned
chaplain to preach to the Pope ; the soul-
rest that protestants wish to the Pope is,
" That the Lord would destroy him by the
Spirit of his mouth." (2 Thes. ii. 8.) But
to popish prelates this wish is a reformation
of accidents, with the safety of the subject,
the Pope, and is as good as a wish, that the
devil, remaining a devil, may find rest for
his soul : all we are to pray for as having
place in the church, are supposed members of
the church. The Prelate would not pray so
for the presbytery by which he was ordained
a pastor, (1 Tim. iv. 14,) though he be
now an apostate ; it is gratitude to pray for
his lucky lather, the Pope. Whatever the
Prelate wish, we pray for and believe that
desolation shall be his soul-rest, and that
the vengeance of the Lord and of his temple
shall fall upon him and the prelates, his sons.
P. Prelate. — That which they purpose,
by denying kings to be Christ's vicegerents,
is to set up a sovereignty ecclesiastical in
presbyteries, to constrain kings, repeal his
laws, correct his statutes, reverse his judg-
ments, to cite, convent, and censure kings ;
and, if there be not power to execute what
presbyteries decree, they may call and com-
mand the help of the people, in whom is
the underived majesty, and promise, and
swear, and covenant to defend their fancies
against all mortal men, with their goods,
lands, fortunes, to admit no devisive motion ;
and this sovereign association maketh every
private man an armed magistrate.
Ans. — You see the excommunicate apos-
tate strives against the presbytery of a re-
formed church, from which he had his
baptism, faith, and ministry.
THE LAW AND THE PRINCE.
213
1. We deny the king to be the head of
the church.
2. We assert, that in the pastors, doctors,
and elders of the church, there is a minis-
terial power, as servants under Christ, ih his
authority and name to rebuke and censure
kings; that there is revenge in the gospel
against all disobedience; (2 Cor. ii. 6 ; x. 6) ;
—the rod of God (1 Cor. iv. 21) ; the rod
of Christ's lips (Isa. xi. 4); the sceptre
and sword of Christ (Rev. i. 16 ; xix. 15) ;
the keys of his kingom, to bind and loose,
open and shut (Matt, xviii. 17, 18; xvi.
19; 1 Cor. v. 1—3; 2 Thess. iii. 14, 15;
1 Tim. i. 19 ; v. 22; v. 17) ; and that this
power is committed to the officers of Christ's
house, call them as you will.
3. For reversing of laws made for the
establishing of popery, we think the church
of Christ did well to declare all these unjust,
grievous decrees, and that woe is due to the
judges, even the queen, if they should not
I repent. (Isa. x. 1.) And this Prelate must
' show his teeth in this against our reforma-
j tion in Scotland, which he once commended
in pulpit as a glorious work of God's right
arm ; and the Assembly of Glasgow, 1638,
declared, That bishops, though established
by acts of parliament, procured by prelates
I only, commissioners and agents tor the
church, who betrayed their trust, were un-
lawful ; and did supplicate that the ensuing
parliament would annul these wicked acts.
They think God privilegeth neither king nor
others from church-censures. The popish
prelates imprisoned and silenced the minis-
ters of Christ, who preached against the
public sins, the blood, oppressions, injustice,
open swearing, and blasphemy of the holy
name of God, the countenancing of idola-
ters, &c, in king and court.
4. They never sought the help of the
people against the most unjust standing law
of authority.
5. They did never swear and covenant to
defend their own fancies ; for the confession
and covenant of the protestant religion,
translated in Latin to all the protestants in
Europe and America, being termed a fancy,
is a clear evidence that this P. Prelate was
justly excommunicated for popery.
6. This covenant was sworn by king-
James and his house, by the whole land, by
the prelates themselves; and to this fancy
this P. Prelate, by the law of our land, was
obliged to swear when ho received degrees
in the university.
7. There is reason our covenant should
provide against divisive motions. The pre-
lates moved the king to command all the
land to swear our covenant, in the prelatical
sense, against the intent thereof, and only
to divide and so command. Judge what
religion prelates are of, who will have the
name of God profaned by a whole nation,
by swearing fancies.
8. Of making private men magistrates in
defending themselves against cut-throats,
enough already. Let the P. Prelate answer
if he can.
P. Prelate. — Let no man imagine me to
privilege a king from the direction and just
power of the church, or that, like Uzziah,
he should intrude upon sacred actions, ex vi
ordinis, in foro intcrno conscientice, to
preach or administrate sacraments, &c.
Ans. — Uzziah did not burn incense, ex
vi ordinis, as if he had been a priest, but
because he was a king and God's anointed.
Prelates sit not in council and parliament,
ex vi ordinis, as temporal lords. The pope
is no temporal monarch, ex vi ordinis, yet
all are intruders. So the P. Prelate will
license kings to administer sacraments, so
they do it not ex vi ordinis.
P. Prelate. — Men in sacred orders, in
things intrinsically spiritual, have imme-
diately a directive and authoritative power,
in order, to all whatsoever, although minis-
terial only as related to Christ ; but that
giveth them no coercive civil power over
the prince, per se, or per accidens, directly
or indirectly, that either the one way or the
other, any or many in sacred order, pope or
presbytery, can cite and censure kings, asso-
ciate, covenant or swear to resist him, and
force him to submit to the sceptre of Christ.
This power over man God Almighty useth
not, much less hath he given it to man.
(Psal. ex.) His people are a willing people.
Suadenda non cogenda religio.
Ans. 1. — Pastors have a ministerial power
(saith he) in spiritual things, but in order to
Christ; therefore, in order to others it is
not ministerial, but lordly. So here a lordly
power pastors have over kings, by the P.
Prelate's way. We teach it is ministerial
in relation to all, because ministers can
make no laws as kings can do, but only, as
heralds, declare Christ's laws.
2. None of us give any coercive civil
power to the church over either kings or
any other — it is ecclesiastical; a power to
rebuke and censure was never civil.
214
LEX, REX
3. A religious covenant to swear to resist,
that is, to defend ourselves, is one thing,
and a lawful oath, as is clear in those of
Israel that did swear Asa's covenant, with-
out the authority of their own king, (2
Chron. xv. 9 — 12,) and to swear to force
the long to submit to Christ's sceptre, is
another thing. The presbytery never did
swear or covenant any such thing; nor do
we take sacrament upon it, to force the
king. Prelates have made the king swear,
and take his sacrament upon it, that he
shall root out puritans, that is, protestants,
whereas, he did swear at his coronation to
root out heretics, that is, (if prelates were
not traitorous in administering the oath,)
Arminians and papists, such as this P. Pre-
late is known to be ; but I hold that the
estates of Scotland have power to punish
the king, if he labour to subvert religion and
laws.
4. If this argument, that religion is to be
persuaded, not forced, which the P. Prelate
useth, be good, it will make much against
the king; for the king, then, can force no
man to the external profession and use of
the ordinances of God, and not only kings,
but all the people should be willing.
P. Prelate. — Though the king may not
preach, &c, yet the exercise of these things
ireely within his kingdom, what concerneth
the decent and orderly doing of all, and the
external man, in the external government
of the church, in appointing things arbitrary
and indifferent, and what else is of this strain,
are so due to the prerogative of the crown,
as that the priests, without highest rebellion,
may not usurp upon him ; a king in the state
and church is a mixed person, not simply
civil, but sacred too. They are not only
professors of truth, that they have in the
capacity of Christians, but they are defen-
ders of the faith as kings ; they are not sons
only, but nurse-fathers; they serve God, as
Augustine saith, as men, and as kings also.
Ans. 1. — If ye give the king power of the
exercises of word and sacraments in his king-
dom, this is deprivation of ministers in his
kingdom, (for he sure cannot hinder them in
another kingdom,) you may make him to give
a ministerial calling, if he may take it away.
By what word of God can the king close the
mouth of the man of God, whom Christ
hath commanded to speak in his name ? 2.
If the king may externally govern the
church, why may he not excommunicate ;
for this is one of the special acts of church
government, especially seeing he is a mixed
person, that is, half a churchman, and if he
may prescribe arbitrary -teaching ceremonies,
and instruct men in the duties of holiness
required of pastors, I see not but he may
teach the "Word. 3. Dr Feme, and other
royalists, deny arbitrary government to the
king in the state, and with reason, because
it is tyranny over the people ; but prelates
are not ashamed of commanding a thing ar-
bitrary and indifferent in God's worship ;
shall not arbitrary government in the church
be tyranny over the conscience ? But, say
they, " Churchmen teacheth the king what
is decent and orderly in God's worship, and
he commandeth it."
Ans. — 1. Solomon by no teaching of church-
men deposed Abiathar ; David by no teach-
ing of churchmen appointed the form of the
temple. 2. Hath God given a prerogative
royal to kings, whereby they may govern
the church, and as kings, they shall not
know how to use it, but in so far as they are
taught by churchmen? 3. Certainly, we
shall once be informed by God's word, what
is this prerogative, if according to it, all the
external worship of God may be ordered.
Lawyers and royalists teach, that it is an
absoluteness of power to do above or against
a law, as they say from 1 Sam. viii., 9 — 11,
and whereby the king may oppress, and
no man may say, What dost thou? Now,
good P. Prelate, if, by a plenitude of ty-
ranny, the king prescribe what he will in
the external worship and government of
God's house, who can rebuke the king
though he command all the antichristian
ceremonies of Borne, and of Turkey, yea,
and the sacrificing of children to Molech ?
(for absoluteness royal will amount to shed-
ding of innocent blood,) for, if any oppose
the king, or say, Sir, what do you ? he op-
poseth the prerogative royal, and that is
highest rebellion, saith our P. Prelate. 4. I
see not how the king is a mixed person, be-
cause he is defender of the faith, as the Pope
named the king of England, Henry VIII. ;
he defendeth it by his sword, as he is a nurse-
father, not by the sword that cometh out of
his mouth. 5. I would know how Julian,
Nebuchadnezzar, Og, and Silion, were mix-
ed persons, and did all in the external go-
vernment of the church, and that by their
office, as they were kings. 6. All the in-
stances that Augustine bringeth to prove
that the king is a mixed person, proveth
nothing but civil acts in kings ; as Hezekiah
THE LAW AND THE PRINCE.
215
cast down the high places, the king of Nin-
eveh compelled to obey the prophet Jonah,
Darius cast Daniel's enemies to the lions.
P. Prelate. — It' you make two sovereigns
and two independents, there is no more peace
in the state, than in Rebecca's womb, while
Jacob and Esau strove for the prerogative.
Ans. 1. — What need Israel strive, when
Moses and Aaron are two independents ? If
Aaron make a golden calf, may not Moses
punish him ? If Moses turn an Ahab, and
sell himself to do wickedly, ought not eighty
valiant priests and Aarons both rebuke, cen-
sure, and resist ?
2. The P. Prelate said, (p. 65,) " Let no
man imagine we privilege the king from the
direction and power of the church, so he be
no intruding Uzziah." I ask, P. Prelate,
what is this church power? Is it not su-
preme in its kind of church power ? or is it
subordinate to the king ? If it be supreme,
see how P. Prelate maketh two supremes,
and two sovereigns. If it be subordinate to
the king, as he is a mixed person, the king
is privileged from this power, and he may
intrude as Uzziah ; and by his prerogative,
as a mixed person, he may say mass, and of-
fer a sacrifice, if there be no power above
his prerogative to curb him. If there be
none, the P. Prelate's imagination is real ;
the king is privileged from all church power.
Let the P. Prelate see to it. I see no in-
convenience for reciprocations of subjections
in two supremes ; and that they may mutu-
ally censure and judge one another.
Obj. — Not in the same cause, that is im-
possible. If the king say mass, shall the
church judge and censure the king for intru-
sion ? and because the king is also sovereign
and supreme in his kind, he may judge and
punish the church for their act of judging
and censuring the king ; it being an intru-
sion on his prerogative, that any should
judge the highest judge.
Ans. — The one is not subject to the other,
but in the case of mal-administration ; the
innocent, as innocent, is subject to no higher
punishing ; he may be subject to a higher,
as accusing, citing, &c. Now, the royalist
must give instance in the same cause, where
the church faileth against the king and his
civil law ; and the king, in the same cause,
faileth against the church canon ; and then
it shall be easy to answer.
P. Prelate. — Religion is the bottom of
all happiness, if you make the king only to
execute what a presbytery commandeth, he
is in a hard case, and you take from him the
chiefest in government. Ecclesiastical power
hath the soul in subjection ; the civil sove-
reignty holdeth a dead dominion over the
body. Then the Pope and presbytery shall
be in a better condition than the king. Cic.
in ver. omncs religione moventur : super-
stition is furious, and maddeneth people, that
they spare neither crown nor mitre.
Ans. — Cold and dry is the P. Prelate
when he spendeth four pages in declama-
tion for the excellency of religon : the mad-
ness of superstition is nothing to the pur-
pose.
1. The king hath a chief hand in church
affairs, when he is a nurse-father, and bear-
eth the royal sword to defend both the ta-
bles of the law, though he do not spin and
weave surplices, and other base mass-clothes
to prelates, and such priests of Baal : they
dishonour his majesty, who bring his prero-
gative so low.
2. The king doth not execute with blind
obedience, with us, what the Pope com-
mandeth, and the prelates, but with light of
knowledge what synods discern ; and he is
no more made the servant of the church by
this, than the king of Judah and Nebuchad-
nezzar are servants to Jeremiah and Daniel,
because they are to obey the word of the
Lord in their mouth. Let them show a rea-
son of this, why they are servants in exe-
cuting God's will in discipline, and in pun-
ishing what the Holy Ghost, by his apostles
and elders, decree, when any contemn the
decree concerning the abstinence from blood,
things strangled, &c, (Acts xv.,) rather than
when they punish murder, idolatry, blas-
phemy, which are condemned in the Word,
preached by pastors of Christ ; and farther,
this objection would have some more colour,
(in reality it hath not,) if kings were only to
execute what the church ministerially, in
Christ's name, commandeth to be done in
synods; but kings may, and do command
synods to convene, and do their duty, and
command many duties, never synodically
decreed ; as they are to cast out of their
court apostate prelates, sleeping many years
in the devil's arms, and are to command
trencher-divines, neglecting their flock, and
lying at court attending the falling of a
dead bishop, as ravens do an old dying
horse, to go and attend the flock, and not
the court, as this P. Prelate did.
3. A king hath greater outward glory,
and may do much more service to Christ,
216
LEX, REX ; OR,
in respect of extension, and is more excel-
lent than the pastor, who yet, in regard of
intention, is busied about nobler things, to
wit, the soul, the gospel, and eternity, than
the king.
4. Superstition maddeneth men; but it
followeth not that true religion may not set
them on work to defend soul and body
against tyranny of the crown, and antichris-
tian mitres.
P. Prelate. — The kingdom had peace and
plenty in the prelates' time.
Ans. — 1. A belly-argument. We had
plenty, when we sacrificed to the queen of
heaven. If the traveller contend to have
his purse again, shall the robber say, Rob-
bery was blessed with peace ? The rest, to
the end, are lies, and answered already.
Only his invectives against ruling elders,
falsely called lay-elders, are not to purpose.
Parliament-priests, and lay and court-pas-
tors, are lay-prophets.
2. That presbyteries meddle with civil
business, is a slander. They meddle with
public scandals that offendeth in Christ's
kingdom. But the prelates, by office, were
more in two elements, in church and state,
than any frogs, even in the king's leaven-
tubs, ordinarily.
3. Something he saith of popes usurping
over kings, but only of one of his fathers, a
great unclean spirit, Gregory the Great.
But if he had refuted him by God's word,
he should have thrown stones at his own
tribe ; for prelates, like him, do ex officio
trample upon the neck of kings.
4. His testimonies of one councd and
one father for all antiquity proveth nothing.
Athanasius said, " God hath given David's
throne to kings." What, to be head of the
church ? No ; to be minister of God, with-
out lla, to tutor the church. And, because
" Kings reign by Christ," as the council of
Armin saith ; therefore, it may follow, a
bailie is also head of the church. It is taken
from Prov. viii., and answered.
5. That presbyteries have usurped over
kings more than popes, since Hildebrand,
is a he. All stories are full of the usurpa-
tion of prelates, his own tribe. The Pope
is but a swelled fat prelate ; and what he
saith of popes, he saith of his own house.
6. The ministers of Christ in Scotland
had never a contest with king James but
for his sins, and his conniving with papists,
and his introducing bishops, the ushers of
the Pope.
QUESTION XLIIL
WHETHER THE KING OF SCOTLAND BE AN
ABSOLUTE PRINCE, HAVING PREROGATIVES
ABOVE PARLIAMENT AND LAWS : THE NE-
GATIVE IS ASSERTED BY THE LAWS OF
SCOTLAND, THE KING'S OATH OF CORONA-
TION, THE CONFESSION OF FAITH, &C
The negative pax*t of this I hold in these
assertions.
Assert. 1. — The kings of Scotland have
not any prerogative distinct from supremacy
above the laws. If the people must be
governed by no laws but by the king's own
laws, that is, the laws and statutes of the
realm, acted in parliament under pain of
disobedience, then must the king govern by
no other laws, and so by no prerogative
above law. But the former is an evident
truth by our acts of parliament ; therefore,
so is the latter. The proposition is con-
firmed, 1. Because whatever law enjoineth
passive obedience no way but by laws, that
must enjoin also the king actively to com-
mand no other way but by law ; for to be
governed by law essentially includeth to be
governed by the supreme governor only
by law. 2. An act of regal governing is
an act of law, and essentially an act of law;
an act of absolute prerogative is no act of
law, but an act above law, or of pleasure
loosed fi-om law ; and so they are opposed
as acts of law, and non-acts of law. If the
subjects, by command of the king and par-
liament, cannot be governed but by law,
how can the king but be under his own
and the parliament's law, to govern only by
law ? I prove the assumption from Pari. 3,
of king James I. act 48, which ordains
" That all and sundry the king's lieges be
governed under the king's laws and statutes
of the realm allenarly, and under no par-
ticular laws or special privileges, nor by any
laws of other countries or realms." Privi-
leges do exclude laws. Absolute pleasure
of the king as a man, and the law of the
king as king, are opposed by way of con-
tradiction ; and so in Pari. 6, James IV.
act 79, ratified Pari. 8, James VI. act
131.
2. The king, at his coronation, (Pari. 1,
James VI. act 8,) sweareth " to maintain
the true kirk of God, and religion now pre-
sently professed, in purity, and to rule the
people according to the laws and constitu-
THE LAW AND THE PRINCE.
217
tions received in the realm, causing justice
and equity to be ministered without par-
tiality." This did king Charles swear at
his coronation, and was ratified, Pari. 7,
James VI. act 99. Hence he who, by the
oath of God, is limited to govern by law,
can have no prerogative above the law. If,
then, the king change the religion and con-
fession of faith, authorised by many par-
liaments, (especially by Pari. 1, Charles,
1633,) he goeth against his oath. The
king's royal prerogative, or rather supre-
macy, (enacted Pari. 8, James VI. act
129 ; Pari. 18, act 1 ; Pari. 21, act 1,
James; and Pari. 1, Charles, act 3,) can-
not be contrary to the oath that king
Charles did swear at his coronation, which
bringeth down the prerogative to governing
according to the standing laws of the realm."
It cannot be contrary to these former par-
liaments and acts, declaring that " the lieges
are to be governed by the laws of the realm,
and by no particular laws and special privi-
leges ;" (but absolute prerogative is a special
privilege above, or without law ;) which acts
stand unrepealed to this day ; and these acts
of parliaments stand ratified by Pari. 1,
Charles, 1633.
3. Pari. 8, James VI. in the first three
acts thereof, the king's supremacy, and the
power and authority of parliaments are
equally ratified under the same pain : —
" Their jurisdictions, power, and judgments
in spiritual or temporal causes, not ratified
by his Majesty, and the three estates con-
vened in parliament, are discharged." But
the absolute prerogative of the king above
law, equity, and justice, was never ratified
in any parliament of Scotland to this day.
4. By Pari. 12, James VI. act 114, all
former acts in favour of the true church and
religion being ratified, their power of mak-
ing constitutions concerning ri xpvev, order
and decency, the privileges that |God hath
given to spiritual office-bearers, as well of
doctrine and dicipline, in matters of heresy,
excommunication, collation, deprivation, and
such like, warranted by the word of God,
and also to assemblies and presbyteries, are
ratified. Now in that parliament, in acts so
contiguous, we are not to think that the
king and three estates would make acts for
establishing the church's power in all the
former heads of government, in which roy-
alists say, " the soul of the king's absolute
prerogative doth consist ;" and therefore it
must be the true intent of our parliament
to give the king a supremacy and a prero-
gative royal, (which we also give,) but with-
out any absoluteness of boundless and tran-
scendent power above law, and not to ob-
trude a service-book, and all the supersti-
tious rites of the church of Rome, without
God's word, upon us.
5. The former act of parliament ratifieth
the true religion, according to the word of
God, then could it never have been the in-
tent of our parliament to ratify an absolute
supremacy, according to which a king might
govern his people, as a tyrannous lion, con-
trary to Deut. xvii. 18 — 20. And it is
true, Pari. 18, James VI. acts 1 and 2,
upon personal qualifications, giveth a royai
prerogative to king James over all causes,
persons, and estates within his Majesty's
dominion, whom they humbly acknowledge
to be " sovereign monarch, absolute prince,
judge and governor over all estates, per-
sons, and causes."
These two acts, for my part I acknow-
ledge, are spoken rather in court expres-
sions than in law terms.
1. Because personal virtues cannot ad-
vance a limited prince (such as the kings of
Scotland, pout hominum memoriam, ever
were) to be an absolute prince. Personal
graces make not David absolutely supreme
judge over all persons and causes ; nor can
king James, advanced to be king of Eng-
land, be for that made more king of Scot-
land, and more supreme judge, than he
was while he was only king of Scotland.
A wicked prince is as essentially supreme
judge as a godly king.
2. If this parliamentary figure of speech,
which is to be imputed to the times, exalted
king James to be absolute in Scotland, for
his personal endowments, there was no
ground to put the same on king Charles.
Personal virtues are not always hereditary,
though to me the present king be the best.
3. There is not any absoluteness above
law in act 1, — the parliament must be more
absolute in themselves. King James VI.
had been divers years, before this 18th par-
liament, king of Scotland; then, if they gave
him by law an absoluteness, which he had
not before, then they were more absolute.
Those who can add absoluteness must have
it in themselves, Nemo dat quod non habet.
If it be said king James had that before the
act ; the parliament legally declared it to be
his power, which, before the declaration,
was his power, I answer, all he had before
2g
518
LEX, REX ; OR,
this declaration was, to govern the people
according to law and conscience, and no
more ; and if they declare no other prero-
gative royal to be due to him, there is an
end, — we grant all. But, then, this which
they call prerogative royal, is no more than
a power to govern according to law, and so
you had nothing to add to king James upon
the ground of his personal virtues, only you
make an oration to his praise in the acts of
parliament.
4. If this absoluteness of prerogative be
given to the king, the subjects, swearing
obedience, swear that he hath power from
themselves to destroy themselves: this is
neither a lawful oath, nor though they
should swear it, doth it oblige them.
5. A supreme judge is a supreme father
of all his children and all their causes ; and
to be a supreme father cannot be contrary
to a supreme judge ; but contrary it must
be, if this supremacy make over to the
prince a power of devouring as a lion, and
that by a regal privilege, and by office,
whereas he should be a father to save ; or
if a judge kill an evil-doer, though that be
an act destructive to one man, yet is it an
act of a father to the commonwealth. An
act of supreme and absolute royalty is often
an act of destruction to one particular man,
and to the whole commonwealth. For ex-
ample, when the king, out of his absolute
prerogative, pardoneth a murderer, and he
killeth another innocent man, and out of
the same ground the king pardoneth him
again, and so till he kill twenty, (for by what
reason the prerogative giveth one pardon,
he may give twenty, there is a like reason
above law for all,) this act of absolute
royalty is such an act of murder, as if a
shepherd would keep a wolf in the fold with
the sheep, he were guilty of the loss of these
sheep. Now an act of destroying cannot
be an act of judging, far less of a supreme
judge, but of a supreme murderer.
6. Whereas he is called " absolute prince
and supreme judge, in all causes, ecclesias-
tical and civil," it is to be considered, 1.
That the estates profess not in these acts to
give any new prerogative, but only to con-
tinue the old power, and that only with that
amplitude and freedom which the king and
his predecessors did enjoy and exercise be-
fore : the extent whereof is best known
from the acts of parliament, histories of the
time, and the oaths of the kings of Scot-
land. 2. That he is called absolute prince,
not in any relation of freedom from law, or
prerogative above law, whereunto, as unto
the norma regula ac mensura potestatis
suce, ac subjectionis mece, he is tyed by the
fundamental law and his own oath, but in
opposition to all foreign jurisdiction or prin-
cipality above him, as is evident by the oath
of supremacy set down for acknowledging of
his power in the first act of parliament 21,
king James VI. 3. They are but the same
expression, giving only the same power be-
fore acknowledged in the 129th act, ParL
8, king James VI., and that only over per-
sons or estates, considered separatim, and
over causes ; but neither at all over the
laws nor over the estates, taken conjunctim,
and as convened in parliament, as is clear,
both by the two immediately subsequent
acts of that parliament, 8, James VI., esta-
blishing the authority of parliaments equally
with the kings, and discharging all jurisdic-
tions (albeit granted by the king) without
their warrant, as also by the narrative deposi-
tee words, and certification of the act itself;
otherwise the estates convened in parliament
might, by virtue of that act, be summoned be-
fore and censured by the king's majesty or his
council, a judicatory substitute, be subordi-
nate to, and censured by themselves, which
were contrary to sense and reason; 4. The
very terms of supreme judge, and in all
causes, according to the nature of correlates,
presupposeth courts and judicial proceedings
and laws, as the ground-work and rule of
all, not a freedom from them. 5. Act 6,
Pari. 20, James VI. clearly interpreteth
what is meant by the king's jurisdiction in
all spiritual and ecclesiastical causes ; to wit,
to be only in the consistorial causes of ma-
trimony, testaments, bastardy, adulteries,
abusively called spiritual causes, because
handled in commissary courts, wherein the
king appoints the commissary, his deputies,
and makes the lords of the session his great
consistory in all ecclesiastical causes, with
reservation of his supremacy and preroga-
tive therein.
7. Supreme judge in all causes, cannot be
taken quoad actus ellcitos, as if the king
were to judge between two seamen, or two
husbandmen, or two tradesmen, in that
which is proper to their art ; or between two
painters. Certainly the king is not to judge
which of the two draweth the iairest picture,
but which of the two wasteth most gold on
his picture, and so doth interest most of the
commonwealth. So the king cannot judge
THE LAW AND THE PRINCE.
219
in all ecclesiastical causes, that is, he cannot,
quoad actos elicitos, prescribe this worship,
for example, the mass, not the sacrament of
the Lord's supper. Therefore the king
hath but actus imperatos, some royal poli-
tical acts about the worship of God, to com-
mand God to be worshipped according to
his word, to punish the superstitions or ne-
glectors of divine worship ; therefore, can-
not the king be sole judge in matters that
belong to the college of judges by the laws
of Scotland, the lords* of session only may
judge these matters, (Pari. 2, James I., act
45 ; Pari. 8, James III., act 62 ; Pari. 4,
James III., act 105 ; Pari. 6, James I.,
act 83 ; Pari. 6, James I., act 86 ; Pari. 7,
James V., act 104,) and that only according
to law, without any remedy of appellation to
king or the parliament (Pari. 14, James II.,
act 62 and 63). And the king is by act of
parliament inhibited to send any private
letter to stay the acts of justice ; or if any
such letter be pix>cured, the judges are not
to acknowledge it as the king's will, for
they are to proceed impartially according to
justice, and are to make the law, which is
the king and parliament's public revealed
will, their rule (Pari. 5, James V., act 68 ;
Pari. 8, James VI., act 139 ; Pari. 6, James
VI., act 92). Nor may the lords suspend
the course of justice, or the sentence or exe-
cution of decrees upon the king's private let-
ter (Pari. 11, James VI., act 79, and Pari.
11, James VI., act 47). And so, if the
king's will or desire, as he is a man, be op-
posite to his law and his will as king, it is
not to be regarded. This is a strong argu-
ment, that the parliaments never made the
king supreme judge, quoad actus elicitos,
in all causes, nay not if the king have a
cause of his own that concerneth lands of
the crown, far less can the king have a will
of prerogative above the law by our laws of
Scotland, And, therefore, when in Pari.
8, James VI., the king's royal power is
established in the first act, the very next
act immediately subjoined thereunto declar-
eth the authority of the supreme court of
parliament continued past all memory of
man unto this day, and constitute of the free
voices of the three estates of this ancient
kingdom, which, in the parliament 1606, is
called, " the ancient and fundamental po-
licy of this kingdom ;" and so fundamental,
as if it should be innovated, such confusion
would ensue, as it could no more be a free
monarchy, as is expressed in the parliament's
printed commission, 1604, by whom the
same, under God, hath been upholden, re-
bellious and traitorous subjects punished,
the good and faithful preserved and main-
tained, and the laws and acts of parliament
(by which all men are governed) made and
established, and appointeth the honour, au-
thority, and dignity of the estates of parlia-
ment to stand in their own integrity, ac-
cording to the ancient and laudable custom
by -past, without alteration or diminution,
and therefore dischargeth any to presume or
take in hand, " to impugn the dignity and
the authority of the said estates, or to seek
or procure the innovation or diminution of
their power or authority, under the pain of
treason :" and, therefore, in the next act,
they discharge all jurisdictions, or judica-
tories, (albeit appointed by the king's ma-
jesty, as the high commission was,) without
their warrant and approbation ; and that,
as contrary to the fundamental laws above
titled, (Pari. 3, James I., act 48 and Pari.
6, James IV., act 79,) whereby the lieges
should only be ruled by laws or acts passed
in the parliament of this kingdom. Now,
what was the ancient dignity, authority, and
power of the parliaments of Scotland, which
is to stand without diminution, that will be
easily and best known from the subsequent
passages, or historians, which can also be
very easily verified by the old registers,
whensoever they should be produced. In
the meantime, remember that in parliament
and by act of Pari. James VI., for observ-
ing the due order of parliament, promiseth,
never to do or command any thing which
may directly or indirectly prejudge the li-
berty of free reasoning or voting of parlia-
ment (Pari. 11, James VI., act 40). And
withal, to evidence the freedom of the par-
liament of Scotland, from that absolute un-
limited prerogative of the prince, and their
liberty to resist his breaking of covenant
with them, or treaties with foreign nations,
ye shall consider — 1. That the kings of
Scotland are obliged, before they be in-
augurated, to swear and make their faithful
covenant to the true kirk of God, that they
shall maintain, defend, and set forward the
true religion confessed and established within
this realm; even as they are obliged and
restricted by the law of God, as well in
Deuteronomy as in 2 Kings xi., and as they
crave obedience of their subjects. So that
the bond and contract shall be mutual and
reciprocal, in all time coming, between the
220
LEX, REX J OR,
prince and the people, according to the word
of God, as is fully expressed in the register
of the convention of estates, July 1567. 2.
That important acts and sentences at home,
(whereof one is printed, Pari. 14, James
III., act 112,) and in treaties with foreign
princes, the estates of parliament did append
their several seals with the king's great seal,
(which to Grotius, Barclaius, and Arnisteus,
is an undeniable argument of a limited
prince, as well as the style of our parlia-
ment, that the estates, with the king, ordain,
ratify, rescind, &c.) as also they were obliged,
in case of the king's breaking these treaties,
to resist him therein, even by arms, and
that without any breach of their allegiance,
or of his prerogative, as is yet extant in the
records of our old treaties with England and
France, &c. But to go on, and leave some
high mysteries unto a rejoinder.
And to the end I may make good, 1. That
nothing is here taught in this treatise but
the very doctrine of the Church of Scotland,
I desire that the reader may take notice of
the larger Confession of the Church of Scot-
land, printed with the body of the confes-
sions at Geneva, anno 1612, and authorised
by James VI. and the three estates in par-
liament, and printed in our acts of parlia-
ment (Pari. 15, James VI., anno 1567).
Amongst good works of the second table,
saith our Confession, (art. 14,) are these : —
To honour father, mother, princes, rulers,
and superior powers. To love them, to sup-
port them, yea, to obey their charge, (not
repugning to the commandment of God,) to
save the lives of innocents, to repress ty-
ranny, to defend the oppressed, to keep our
bodies clean and holy, &c. The contrary
whereof is, to disobey or resist any that
God hath placed in authority, (while they
pass not over the bounds of their office,) to
murder, or to consent thereunto, to bear
hatred, or to let innocent blood be shed, if
we may withstand it, &c. Now the Confes-
sion citeth in the margin, Eph. i. 1, 7 and
Ezek. xxii. 1 — 4, &c, where it is evident,
by the name of father and mother, all infe-
rior judges as well as the king, and espe-
cially the princes, rulers, and lords of par-
liament are understood. 2. The bloody city
is to be judged, because they relieved not
the oppressed out of the hand of the bloody
princes, (v. 6,) who every one of them did
to their power shed innocent blood (Ezek.
xxii. 6). 3. To resist superior powers, and
so the estates of parliament, as the cavaliers
of Scotland do, is resistance forbidden (Rom.
xiii. 1). The place is also cited in the Con-
fession, and the Confession exponeth the
place (Rom. xiii.) according to the interpre-
tation of all sound expositors, as is evident in
these words, art. 24, " And therefore we
confess and avouch, that such as resist the
supreme power, doing that thing which ap-
pertaineth to his charge, do resist God's or-
dinance, and therefore cannot be guiltless.
And farther, we affirm, that whosoever
denieth unto them aid, their counsel and
support, while as the princes and rulers vigi-
lantly travel in execution of their office, that
the same men deny their help, support, and
counsel to God, who, by the presence of his
lieutenant, craves it of them." From which
words we have clear : —
1. That to resist the king or parliament,
is to resist them while as they are doing
the thing that appertaineth to their charge,
and while they vigilantly travel in the exe-
cution of their office. But while king and
parliament do acts of tyranny against God's
law, and all good laws of men, they do not
the things that appertain to their charge
and the execution of their office ; therefore,
by our Confession, to resist them in tyran-
nical acts is not to resist the ordinance of
God.
2. To resist princes and rulers, and so in-
ferior judges, and to deny them counsel and
comfort, is to deny help, counsel, and com-
fort to God. Let then cavaliers, and such
as refuse to help the princes of the land
against papists, prelates and malignants,
know, that they resist God's ordinance,
which rebellion they unjustly impute to us.
3. Whereas it is added in our Confession,
that God, by the presence of his lieutenant,
craveth support and counsel of the people,
it is not so to be taken, as if then only we
are to aid and help inferior judges and
parliaments, when the king personally re-
quireth it, and not otherways. 1. Because
the king requireth help, when, by his office,
he is obliged to require our help and coun-
sel against papists and malignants, though as
misled, he should command the contrary:
so if the law require our help, the king re-
quireth it ex officio. 2. This should ex-
pressly contradict our Confession, if none
were obliged to give help and counsel to the
parliaments and estates, except the king
in his own person should require it, because
(art. 14) it is expressly said, That to save
the lives of innocents, or repress tyranny, to
THE LAW AND THE PRINCE.
221
defend the oppressed, — not to suffer inno-
cent blood to be shed, are works pleasing to
God, which he rewardeth. Now we are not
to think in reason, if the king shall be in-
duced by wicked counsel to do tyrannical
works, and to raise papists in arms against
protestants, that God doth by him, as by his
lieutenant, require our help, comfort, and
counsel in assisting the king in acts of ty-
ranny, and in oppression, and in shedding in-
nocent blood ; yea, our Confession tyeth us
to deny help and comfort to the king in these
wicked acts, and therefore our help must be
in the tilings that pertaineth to his royal
office and duty only, otherwise we are to re-
press all tyranny (art. 14).
4. To save the lives of innocents, to re-
press tyranny, to defend the oppressed, are,
by our Confession, good works, well pleasing
to God, and so is this a good work, not to
suffer innocent blood to be shed, if we may
withstand it. Hence it is clear as the sun,
that our Confession, according to the word of
God, to which king Charles did swear at his
coronation, doth oblige and tie us in the
presence of God and his holy angels, to rise
in arms to save the innocent, to repress
tyranny, to defend the oppressed. When
the king, by ill counsel, sent armies by sea
and land to kill and destroy the whole king-
dom who should refuse such a service-book
as they could not in conscience receive, ex-
cept they would disobey God, renounce the
Confession of Faith, which the king and they
had sworn unto, and prove perfidious apos-
tates to Christ and his church, what could
we do, and that the same Confession, consi-
dering our bonds to our dear brethren in
England, layeth bonds on us to this, as a
good work also, not to suffer their innocent
blood to be shed, but to defend them, when
they, against all law of God, of men, of
state, of nations, are destroyed and killed.
For my part, I judge it had been a guilti-
ness of blood upon Scotland, if we had not
helped them, and risen in arms to defend
ourselves and our innocent brethren against
bloody cavaliers. Add to this what is in the
24th article of the same Confession : —
" We confess, whosoever goeth about to take
away, or to confound the whole state of civil
polity, now long established, we affirm the
same men not only to be enemies to man-
kind, but also wickedly to fight against God's
will." But those who have taken arms
against the estates of Scotland, and the
princes and rulers of the land, have la-
boured to take away parliaments, and the
fundamental laws of this kingdom, there-
fore, the Confession addeth, (art. 16,) "We
farther confess and acknowledge, that such
persons as are placed in authority are to be
loved, honoured, feared, and holden in most
reverent estimation, because that they are
lieutenants of God, in whose sessions God
himself doth sit and judge ; yea, even the
judges and princes themselves, to whom, by
God, is given the sword, to the praise and
defence of good men, and to revenge and
punish all open malefactors." Therefore,
the parliament, and princes, and rulers of
the land, are God's lieutenants on earth no
less than the king, by our Confession of
Faith ; and those who resist them, resist the
ordinance of God. Royalists say, they are
but the deputies of the king, and when they
do contrary to his royal will, they may be
resisted, yea, and be killed, for in so far
they are private men, though they are to be
honoured as judges when they act according
to the king's will, whose deputies they are.
But, I answer : —
1. It is a wonder that inferior judges
should be formally judges, in so far as they
act conform to the will of a mortal king,
and not in so far as they act conform to the
will of the King of kings, seeing the judg-
ment they execute is the King of kings',
and not the judgment of a mortal king. (2
Chron. xix. 6.)
2. Royalists cannot endure the former
distinction as it is applied to the king, but
they receive it with both hands as it is ap-
plied to inferior judges ; and yet, certain it
is, that it is as ordinary for a king, being a
sinful man, to act sometimes as the lieute-
nant of God, and sometimes as an erring and
misinformed man, no less than the inferior
judge acteth sometimes according to the
king's will and law, and sometimes accord-
ing to his own private way ; and if we are
to obey the inferior judge as the deputy of
the king, what shall become of his person,
when cavaliers may kill him at some Edge-
hill ? for so they mock this distinction, as
applied to the king in regard of his person
and of his royal office ; and for this point
our Confession citeth in the margin Rom.
xiii. 7; 1 Bet. ii. 17; Fsal. lxxxii. 1,
which places do clearly prove that inferior
magistrates are, 1. God's ordinances; 2.
Gods on earth, (Fsal. lxxxii. 6) ; 3. Such
as bear the Lord's sword ; 4. " That they
are not only (as the Confession saith) ap-
222
LEX, REX : OR,
pointed for civil policy, but also for main-
tenance of true religion, and for suppressing
of idolatry and superstition." Then, it is
evident, to resist inferior magistrates is to
resist God himself, and to labour to throw
the sword out of God's hand. 5. Our Con-
fession useth the same Scriptures cited by
Junius Brutus, to wit, Ezek. xxii. 1 — 7;
Jer. xxii. 3, where we are, no less than the
Jews, commanded to " execute judgment
and righteousness, and deliver the spoiled
out of The hands of the oppressor ;" for both
the law of God and the civil law saith, Qui
non impedit homicidium, quum potest, is
homicidii reus est. I will cast in a word of
other Confessions, lest we seem to be Jesuits
alone.
The Confession of Helvetia saith, (c. 30,)
de Magistrate, Viduas,pupillos, afflictos
asserat, every magistrate is to defend the
widow, the orphan, and the oppressed. The
French Confession saith, (art. 40,) Ajjirma-
mus ergo parendumesse legibus et statutis,
solvenda tributa, subjectionis denique ju-
gum voluntarie tolerandum, etiamsi infi-
deles fuerint magistrates, dummodo Dei
summum imperium integrum et illibatum
maneat. So clear it is that all active obe-
dience is due to all magistrates, and that
that yoke of passive obedience is to be tole-
rated but conditionally, with a dummodo,
so as the magistrate violate not the supreme
commandment of the King of kings ; and
we know, accordingly, protestants of that
church have taken defensive arms against
their king. But our P. Prelate can say, the
Confessions of Scotland, Helvetia, France,
and all the reformed churches, are Jesuiti-
cal, when as it was the doctrine of the
Waldenses, the protestants, Luther, Calvin,
and others, while as there was no Jesuit on
earth.
The thirty-seventh article of the Church
of Enoland's Confession1 is so far from erect-
ing an absolute power in the king, that they
expressly bring down the royal prerogative
from the high seat and transcendent super-
lative power above the law, and expone the
prerogative to be nothing but mere law-
power. " We only (say they) ascribe that
1 Angl. Conf. art. 37. Sed earn tantum preroga-
tivam aquam in sacris Scripturis a Deo ipso omni-
bus piis princibus semper fuisse tributam, hoc est,
ut omnes status atque ordines fidei, suae commissos,
fixe illi ecclesiastici sint, sive civiles, in officio con-
tineant, et contumaces ac delinquentes gladio civili
coerceant.
prerogative to the king which the Scripture
doth ascribe to all godly princes; that is,
that they cause all committed to their trust,
whether ecclesiastical or civil persons, to do
their duty, and punish with the civil sword all
disobedient offenders." In syntag. Confess.
" And this they say in answer to some who
believed the Church of England made the
king the head of the church." The Pre-
lates' Convocation must be Jesuits to this
P. Prelate also.
So the thirty-sixth article of the Belgic
Confession saith of all magistrates, no less
than of a king, (we know, for tyranny of
soul and body, they justly revolted from
their king,) Idcirco magistrates ipsos gla-
dio armavit, ut malos quidem plectant
paznis, probos vero teeanter. Horum por-
ro est, non modo de civili politia conser-
vanda esse solicitos, verum etiam dare
operam ut sacrum ministerium conservetur,
omnis idololatria et adulterinus Dei cultus
e medio tollatur, regnum antichristi diru-
ater, fyc Then, all magistrates, though in-
ferior, must do their duty that the law of
God hath laid on them, though the king
forbid them ; but, by the Belgic Confession
and the Scripture, it is their duty to relieve
the oppressed, to use the sword against mur-
dering papists and Irish rebels and destroy-
ing cavaliers ; for, shall it be a good plea in
the day of Christ to say, " Lord Jesus, we
would have used thy sword against bloody
murderers if thy anointed, the king, had
not commanded us to obey a mortal king
rather than the King of ages, and to exe-
cute no judgment for the oppressed, because
he judged them faithful catholic subjects."
Let all Oxford and cavalier doctors in the
three kingdoms satisfy the consciences of
men in this, that inferior judges are to obey
a divine law, with a proviso that the king
command them so to do, and otherwise they
are to obey men rather than God. This is
evidently holden forth in the Argentine
Confession, exhibited by four cities to the
emperor Charles V., 1530, in the very same
cause of innocent defence that we are now in
in the three kingdoms of Scotland, England,
and Ireland.
The Saxon Confession, exhibited to the
Council of Trent, (1551, art. 23,) maketh
the magistrate's office essentially to consist
in keeping of the two tables of God's law ;
and so, what can follow hence, but in so far
as he defendeth murderers, — or, if he be a
king-, and shall with the sword or arms iin-
THE LAW AND THE PRINCE.
223
pede inferior magistrates (for the Confession
speaketh of all) to defend God's law and
true religion against papists, murderers, and
bloody cavaliers, and hinder them to exe-
cute the judgment of the Lord against evil
doers, — he is not, in that, a magistrate ; and
the denying of obedience, active or passive,
to him in that, is no resistance to the ordi-
nance of God; but, by the contrary, the
king himself must resist the ordinance of
God.
The Confession of Bohemia is clear, (art.
16,) Quipublico muneremagistratuquefun-
guntur, quemcunque, gradum teneant, se
non suum,sed Deiopus agere sciant. Hence,
all inferior or the supreme magistrate, what-
ever be their place, they do not their own
work, nor the work of the king, but the work
of God, in the use of the sword ; therefore,
they are to use the sword against bloody
cavaliers, as doing God's work — suppose the
king should forbid them to do God's work ;
and it saith of all magistrates, Sunt autem
magistratuum partes ac munus, omnibus
ex aequo jus dicere, in communem omnium
usum, sine personarum acceptatione, pacem
ac tranquilitatem publicam tueri ac pro-
curare de malis ac facinorosis, hanc inter
turbantibus pcenas sumere, aliosque, omnes
ab eorum vi et injuria vindicare. Now,
this confession was the faith of the barons
and nobles of Bohemia who were magistrates^
and exhibited to the emperor, anno 1535,
in the causes not unlike unto ours now, and
the emperor was their sovereign ; yet they
profess they are obliged, in conscience, to
defend all under them from all violence and
injuries, that the emperor, or any other,
could bring on them ; and that this is their
office before God, which they are obliged to
perform as a work of God, and the Chris-
tian magistrate is not to do that work which
is not his own but God's, upon condition that
the king shall not inhibit him. What if the
king shall inhibit parliaments, princes, and
rulers, to relieve the oppressed, to defend
the orphan, the widow, the stranger, from
unjust violence ? Shall they obey man ra-
ther than God ?
To say no more of this : prelates in Scot-
land did what they could, 1. To hinder his
Majesty to indict a parliament. 2. When
it was indicted, to have its freedom destroyed
by prelimitations. 3. When, it was sitting,
their care was to divide, impede, and annul
the course of justice. 4. All in the P. Pre-
late's book tendeth to abolish parliaments,
and to enervate their power. 5. There were
many ways used to break up parliaments in
England ; and to command judges not to
judge at all, but to interrupt the course of
justice, is all one as to command unrighteous
judgment (Jer. xxii. 3). 6. Many ways
have been used by cavaliers to cut off par-
liaments, and the present parliament in
England.
The paper found in William Laud's study,
touching fears and hopes of the parliament
of England, evidenceth that cavaliers hate
the supreme seat of justice, and would it
were not in the world ; which is the highest
rebellion and resistance made against supe-
rior powers.
1. He feareth this parliament shall begin
where the last left.
Ans. — Whatever ungrateful courtier had
hand in the death of king James deserved
to come under trial.
2. He feareth they sacrifice some man.
Ans. — 1. If parliaments have not power
to cut off rebels, and corrupt judges, the root
of their being is undone. 2. If they be
lawful courts, none need fear them, but the
guilty.
3. He feareth their consultations be long,
and the supply must be present;
Ans. — 1. Then cavaliers intend parlia-
ments for subsidies to the king, to foment
and promote the war against Scotland, not
for justice. 2. He that feareth long and
serious consultations, to rip up and lance the
wounds of church and state, is afraid that
the wounds be cured.
4. He feareth they deny subsidies, which
are due by the law of God, nature, and na-
tions, whereas parliaments have but their
deliberation and consent for the manner of
giving, otherwise this is to sell subsidies, not
to give them.
Ans. — Tribute, and the standing revenues
of the king, are due by the law of God and
nations ; but subsidies are occasional rents
given upon occasion of war, or some extra-
ordinary necessity ; and they are not given
to the king as tribute and standing revenues,
which the king may bestow for his house,
family, and royal honour, but they are given
by the kingdom, rather to the kingdom
than to the king, for the present war, or
some other necessity of the kingdom, and
therefore are not due to the king as king,
by any law of nature or nations, and so
should not be given but by deliberation and
| judicial sentence of the states ; and they are
22-1
LEX, REX ; OR,
not sold to the king, but given out by the
kingdom by statute of parliament, to be be-
stowed on the kingdom, and the king should
sell no acts of justice for subsidies.
5. He dare not speak of the consequences,
if the king grant bills of grace, and part with
the flowrets of the crown.
Ans. — He dare not say, the people shall
vindicate their liberty by selling subsidies to
buy branches of the prerogative royal, and
diminishing the king's fancied absoluteness ;
so would prelates have the king absolute,
that they may ride over the souls, purses,
persons, estates, and religion of men, upon
the horse of pretended absoluteness.
6. He feareth the parliament fall upon
church business; but, 1. The church is too
weak already; if it had more power, the
king might have more both of obedience and
service. 2. The houses can be no competent
judges in point of doctrine. 3. For the
king, clergy, and convocation are judges in
all causes ecclesiastical.
Ans. 1. — This striketh at the root of all
parliamentary power. 1. The P. Prelate
giveth them but a poor deliberative power in
subsidies ; and that is, to make the king's
will a law, in taking all the subjects' goods
from them, to foment war against the sub-
jects. 2. He taketh all jurisdiction from
them over persons, though they were as
black traitors as breathe. 3. And spoileth
them of all power in church matters ; 'to
make all judges, yea, and the king himself
yield blind obedience to the Pope and Pre-
late, and their illuminated clergy. Sure I
am, P. Maxwell imputeth this, but most
unjustly, to presbyteries. What essential
and fundamental privileges are left to par-
liaments? David and the parliament of
Israel are impertinent judges in the matter
of bringing home the ark of God. And for
the church's weakness, that is, the weak-
ness of the damned prelates, shall this
be the king's weakness ? Yes ; the P.
Prelate must make it true, no bishop, no
king.
7. He feareth factious spirits will take
heart to themselves, if the king yield to
them without any submission of theirs.
Ans. — The princes and judges of the
land are a company of factious men, and so
no parliament, no court, but at best some
good advisers of a king to break up the
parliament, because they refuse subsidies,
that he may, by a lawless way, extort sub-
sidies.
8. He desireth the parliament may sit a
short time, that they may not well under-
stand one another.
Ans. — He loveth short or no justice from
the parliament ; he feareth they reform
God's house, and execute justice on men
like himself. But I return to the Scottish
parliament.
Assert. 2. — The parliament is to regu-
late the power of the king. The heritable
sheriffs complain that the king granteth
commissions to others in cases pertaining to
their office ; whereupon the estates (Pari.
6, James VI., act 82) dischargeth all such
commissions, as also appointeth that all mur-
derers be judged by the justice general only.
And in several acts the king is inhibited
to grant pardons to malefactors, Pari. 11,
James VI., act 75.
It is to be considered that king James,
in his Basilikon Dor on, layeth down an
unsound ground, that Fergus the first, fa-
ther of one hundred and seven kings of
Scotland, conquered this kingdom. The
contrary whereof is asserted by Fordome,
Major, Boethius, Buchanan, Hollanshed,
who run all upon this principle, that the
estates of the kingdom did, 1. Choose a
monarchy, and freely, and no other govern-
ment. 2. That they freely elected Fergus
to be their king. 3. King Fergus fre-
quently convened the parliament called In-
sulanorum duces, tribuum rectores, ma-
jorum consessus, conventus ordinum, con-
ventus statuum, communitatum regni, phy-
larchi, prhnores, principes, patres ; and,
as Hollanshed saith, they made Fergus
king, therefore a parliament must be be-
fore the king ; yea, and after the death of
king Fergus, philarchi coeunt condone ad-
vocata, the estates convened without any
king, and made that fundamental law regni
elective, that when the king's children were
minors, any of the Fergusian race might be
chosen to reign, and this endured to the
days of Kenneth ; and Redotha, the seventh
king, resigned and maketh over the govern-
ment into the hands of the parliament, and
Philarchi Tribuum Gubernatores ordained
Thereus the eighth king. Buchanan, (I. 4,
rer. Scot.) calleth him Beutha, and said he
did this, populo egre permittente, then the
royal power recurred to the fountain. The-
reus, the eighth king, a wicked man, filled
the kingdom with robbers, and fearing the
parliament should punish him, fled to the
Britons, and thereupon the parliament
THE LAW AND THE PRINCE.
225
choose Connanus to be prorex and protector
of the kingdom.
Finnanus, the tenth king, decreed, — Ne
quid reges, quod majoris esset momenti,
nisi de publici consilii authoritate juberent,
et ne domcstico consilio rcmp. administra-
rent, regia publicaque ncgotia non sine
patrum consultatione ductuque tractaren-
tur, nee bellum pacem aut fcedera reges
per se patrum, tribuumve, rectorum in-
jussu facerent, demerentue ; then it is
clear that parliaments were consortes im-
perii, and had the authority with and above
the king. When a law is made that the
kings should do nothing injussu rectorum
tribuum, without commandment of the par-
liament, a cabinet-council was not lawful to
the kings of Scotland. So Durstus, the
eleventh king, sweareth to the parliament,
" Se nihil nisi de primorum consilio actu-
rum," that he shall do nothing but by coun-
sel of the rulers and heads of the kingdom.
The parliament, rejecting the lawful son
of Corbredus, the nineteenth king, because
he was young, created Dardanus, the ne-
phew of Metellanus, king, which is a great
argument of the power of the Scottish par-
liament of old for elective rather than here-
ditary kings.
Corbredus II., called Galdus, the twenty-
first king, at his coronation, renouncing all
negative voices, did swear, Se majorum
consiliis acquieturnm, that he should be
ruled by the parliament ; and it is said,
Leges quasdam tollere non potuit, adver-
sante midtitudine.
Luctatus, the twenty-second king, is cen-
sured by a parliament, " Quod spreto ma-
jorum consilio" he appointed base men to
public offices.
Mogaldus, the twenty-third king, " Ad
consilia seniorum omnia ex prisco more
revocavit," did all by the parliament, as the
ancient custom was.
Conarus, the twenty-fourth king, was cast
into prison by the parliament, " Quod non
expectato decreto patrum, quod summce
erat potestatis, privatis consiliis adminis-
trasset," because he did these weightiest
business that concerned the kingdom, by
private advice, without the judicial ordin-
ance of parliament, that was of greatest au-
thority. Where is the negative voice of the
king here ?
Ethodius II. (son of Ethodius I.) the
twenty-eighth king, (the parliament passing
him by on account oi his age, and electing
Satrael, his father's brother, king before
him,) was a simple ignorant man, yet for
reverence to the race of Fergus, kept the
name of a king, but the estates appointed
tutors to him.
Nathalocus, the thirtieth king, corrupting
the nobles with buds and fair promises, ob-
tained the crown.
Romachus, Fethelmachus, and Angu-
sianus, or as Buchanan calleth him, iEne-
anus, contended for the crown, the parlia-
ment convened to judge the matter was
dissolved by tumult, and Romachus chosen
king, doing all, non adhibito, de more,
consilio majorum, was censured by the par-
liament.
Fergus II. was created king by the
states, de more.
Constantino, the forty-third king, a most
wicked man, was punished by the states.
Aidanus, the forty-ninth king, by the
counsel of St Columba, governed all in
peace, by three parliaments every year.
Ferchard I., the fifty-second king, and
Ferchard II., the fifty-fourth king, were
both censured by parliaments.
Eugenius VII., the fifty-ninth king, was
judicially accused, and absolved by the states,
of killing his wife Spondana.
Eugenius VIII., the sixty-second king,
a wicked prince, was put to death by the
parliament, omnibus in ejus exitium, con~
sentientibus.
Donaldus, the seventieth king, is cen-
sured by a parliament, which convened,
pro salute reipublicai, for the good of the
land. So Ethus, the seventy-second king,
Ne unius culpa, regnum periret.
Gregory, the seventy-third king, swear-
eth to maintain kirk and state in their li-
berties; the oath is ordained to be sworn
by all kings at their coronation.
The estates complain of Duff, the seventy-
eighth king, because contemning the coun-
sel of the nobles, Sacrificulorum consiliis
abduceretur, and that either the nobility
must depai't the kingdom, or another king
must be made.
Culen, the seventy-ninth king, was sum-
moned before the estates, so before him,
Constantine III., the seventy-fifth king,
did, by oath, resign the kingdom to the
states, and entered in a monastery at St
Andrews.
Kenneth III., the eightieth king, pro-
cured almost, per vim, saith Buchanan,
that the parliament should change the elec-
2h
226
LEX, REX ; OR,
tive kings into hereditary ; observe the power
of parliaments.
After this Grim, and then Macbeth,
the eighty-fifth king, is rebuked for govern-
ing by private counsel; in his time, the
king is ordained by the states to swear to
maintain the community of the kingdom.
When Malcolm IV., the ninety-second
king, would have admitted a treaty to the
hurt of the kingdom, the nobles said, Non
jus esse regi, the king had no right to take
anything from the kingdom, Nisi omnibus
ordinibus consentientibus. In the time of
Alexander, the ninty-fourth king, is or-
dained, Acta regis oporteri confirrnari de-
er eto ordinum regni, quia ordinibus regni
non considtis, aut adversantibus, nihil
quod ad totius regni statum attinet, regi
agere liceret; so all our historians observe ;
by which it is clear, that the parliament,
not the king, hath a negative voice.
The states' answer to king Edward's le-
gates, concerning Balzee's conditions in his
contest with Brace is, that these conditions
were made a solo rege, by the king only,
without the estates of the kingdom, and
therefore they did not oblige the kingdom.
In Robert the Brace's reign, the ninty-
seventh king, the succession to the crown is
appointed by act of parliament, and twice
changed ; and in the league with France,
Quod quando de successuro rege ambige-
retur apud Scotos, ea controversia ab or-
dinum de creto decideretur.
Robert, the hundredth king, in a parlia-
ment at Scoon, moved the states to appoint
the earl of Carrick, his eldest son of the
second marriage, to the crown, passing his
children of the first marriage ; and when
he would have made a treaty, he was told,
that he could not inducias facere nisi ex
sententia conventus publici, he could not
make truces but with the consent of the
estates of parliament.
James I. could not do anything in his
oath in England. The parliament's appro-
bation of the battle at Stirling against king
James III. is set down in the printed acts,
because he had not the consent of the states.
To come to our first reformation, the
queen regent, breaking her promise to the
states, said, " Faith of promise should not
be sought from princes ;" the states an-
swered, that they then were not obliged to
obey, and suspended her government as in-
consistent with the duty of princes, by the
articles of pacification at Leith, June 16,
1560. No peace or war can be without
the states.
In the parliament thereafter, (1560,) the
nobility say frequently to the queen, Regum
Scotorum limitatum esse imperium, nee
unquam ad unius libidinem, sed ad legum
prcescriptum et nobilitatis consensum regi
solitum.
So it is declared, parliament at Stirling,
1578, and pari. 1567, concerning queen
Mary, I need not insist here. James VI.
July 21, 1567, was crowned, the earl of
Morton and Hume, jurarunt pro eo, et
ejus nomine, in leges, eum doctrinam et
ritus religionis, quce turn docebantur, pub-
lice quoad posset, servaturum, et con-
trarios oppugnaturum. (Buch. Rer. Scot.
Hist. 1. 18.) The three estates revoke all
alienations made by the king without con-
sent of the parliament. Pari. 2, James VI.
c. 2, 4, 5, 6.
Three parliaments of James II. are held
without any mention of the king, as 1437,
1438, and 1440, and act 5 and 6 of Pari.
1440, the estates ordain the king to do such
and such things, to ride through the coun-
try for doing of justice ; and Pari. 1, James
I. act 23, the estates ordained the king to
mend his money ; but show any parliament
where ever the king doth prescribe laws to
the states, or censure the states.
In Pari. 1, James VI., the Confession of
Faith being ratified, in acts made by the
three estates, that the kings must swear at
their coronation, " In the presence of the
eternal God, that they shall maintain the
true religion, right preaching, and admini-
stration of the sacraments now received and
preached within this realm, and shall abo-
lish and gain-stand all false religions con-
trary to the same, and shall rule the people
committed to their charge, according to
the will of God, laudable laws, and constitu-
tions of the realm," &c.
The Pari. 1, James VI., 1567,approveth
the acts of parliament 1560, conceived only
in name of the states, without the king and
queen, who had deserted the same ; so saith
the act 2, 4, 5, 20, 28. And so this par-
liament, wanting the king and queen's au-
thority, is confirmed, Pari. 1572, act 51,
king James VI. ; Pari. 1581, act 1 ; and
Pari. 1581, act 115, in which it is declared,
" That they have been common laws from
their first date," and are all ratified, Pari.
1587, and 1592, act 1 ; and stand ratified
to this day by king Charles' parliament,
THE LAW AND THE PRINCE.
227
1633. The act of the Assembly, 1566,
commendeth that parliament, 1560, as the
" most lawful and free parliament that ever
was in the kingdom."
Yea, even Pari. 1641, king Charles him-
self being present, an act was passed upon
the occasion of the king's illegal imprisoning
of the laird of Langton : that the king hath
no power to imprison any member of the
parliament without consent of the parlia-
ment. Which act, to the great prejudice
of the liberty of the subject, should not have
been left unprinted ; for, by what law the
king may imprison one member of the par-
liament, by that same reason he may im-
prison two, twenty, and a hundred ; and so
may he clap up the whole free estates, and
where shall then the highest court of the
kingdom be?
All politicians say, the king is a limited
prince, not absolute ; where the king giveth
out laws, not in his own name, but in the
name of himself and the estates judicially
convened.
In p. 33 of the old acts of parliament,
members are summoned to treat and con-
clude.
The duty of parliaments, and their power,
according to the laws of Scotland, may be
seen in the history of Knox, now printed at
London (an. 16-43), in the nobles' proceed-
ing with the queen, who killed her husband
and married Bothwell, and was arraigned
in parliament, and by a great part con-
demned to death ; by many, to perpetual
imprisonment.
King Charles received not crown, sword,
and sceptre, until first he did swear the
oath that king James his father did swear.
He was not crowned, till one of every one
of the three estates came and offered to him
the crown, with an express condition of his
duty, before he be crowned.
After king Charles said, " I will by God's
assistance bestow my life for your defence,
wishing to live no longer than that I may
see this kingdom flourish in happiness,"
thereafter, the king showing himself on a
stage to the people, the popish archbishop
said ; " Sirs, I do present unto you king
Charles, the right descended inheritor, — the
crown and dignity of this realm, appointed
by the peers of the kingdom. And are you
willing to have him for your king, and be-
come subject to him ?" The king turning
himself on the stage, to be seen of the
peope, they declared willingness, by cry-
ing, God save king Charles ! Let the king
QUESTION XLIV.
GENERAL RESULTS OF THE FORMER DOCTRINE,
IN SOME FEW COROLLARIES, OR STRAYING
QUESTIONS, FALLEN OFF THE ROADWAY,
ANSWERED BRIEFLY.
Quest. 1. — Whether all governments be
but broken governments and deviations from
monarchy.
Ans. — 1. It is denied: there is no less
somewhat of God's authority in government
by many, or some of the choicest of the
people, than in monarchy; nor can we
judge any ordinance of man unlawful, for
we are to be subject to all for the Lord's
sake. (1 Pet. ii. 13 ; Tit. iii. 1 ; 1 Tim. ii.
1 — 3.) 2. Though monarchy should seem
the rule of all other governments, in regard
of resemblance of the Supreme Monarch
of all, yet it is not the moral rule from
which, if other governments shall err, they
are to be judged sinful deviations.
Quest. 2. — Whether royalty is an im-
mediate issue and spring of nature.
Ans. — No; for a man, fallen in sin,
knowing naturally he hath need of a law
and a government, could have, by reason,
devised governors, one or more ; and the
supervenient institution of God, comino-
upon this ordinance, doth more fully assure
us, that God, for man's good, hath appointed
governors ; but, if we consult with nature,
many judges and governors, to fallen nature,
seem nearer of blood to nature than one
only ; for two, because of man's weakness,
are better than one. Now, nature seemeth
to me not to teach that only one sinful man
should be the sole and only ruler of a whole
kingdom ; God, in his word, ever joined
with the supreme ruler many rulers, who,
as touching the essence of a judge, (which is,
to rule for God,) were all equally judges:
some reserved acts, or a longer cubit of
power in regard of extent, being due to the
king.
Quest. 3. — Whether magistrates, as ma-
gistrates, be natural.
Ans. — Nature is considered as whole and
sinless, or as fallen and broken. In the for-
mer consideration, that man should stand
in need of some one to compel him with
228
LEX, REX ; OR,
the sword to do his duty, and not oppress,
was no more natural to man than to stand
in need of lictors and hangmen, or physi-
cians for the body, which in this state was
not in a capacity of sickness or death ; and
so government by parents and husbands was
only natural in the latter consideration.
Magistrates, as magistrates, are two ways
considered, — 1. According to the knowledge
of such an ordinance ; 2. According to the
actual erection of the practice of the office
of magistrates. In the former notion, I
humbly conceive, that by nature's light, man
now fallen and broken, even under all the
fractions of the powers and faculties of the
soul, doth know, that promises of reward,
fear of punishment, and the co-active power
of the sword, as Plato said, are natural
means to move us, and wings to promote
obedience and to do our duty ; and that go-
vernment by magistrates is natural. But,
in the second relation, it is hard to deter-
mine that kings, rather than other gover-
nors, are more natural.
Quest. 4. — Whether nature hath deter-
mined that there should be one supreme
ruler, a king, or many rulers, in a free com-
munity.
Ans. — It is denied.
Quest. 6. — Whether every free common-
wealth hath not in it a supremacy of ma-
jesty, which it may formally place in one or
many.
Ans. — It is affirmed.
Quest 6. — Whether absolute and un-
limited power of royalty be a ray and beam
of divine majesty immediately derived from
God?
Ans. — Not at all. Such a creature is not
in the world of God's creation. Royalists
and flatterers of kings are parents to this
prodigious birth. There is no shadow of
power to do ill in God. An absolute power
is essentially a power to do without or above
law, and a power to do ill, to destroy ; and
so it cannot come from God as a moral
power by institution, though it come from
God by a flux of permissive providence ;
but so things unlawful and sinful come from
God.
Quest. 7. — Whether the king may in his
actions intend his own prerogative and ab-
soluteness.
Ans. — He can neither intend it as his
nearest end, nor as his remote end. Not
the former, for if he fight and destroy his
people for a prerogative, he destroycth his
people that he may have a power to destroy
them, which must be mere tyranny, nor can
it be his remote end ; for, granting that his
supposed absolute prerogative were lawful,
he is to refer all lawful power and all his ac-
tions to a more noble end, to wit, to the
safety and good of the people.
Quest. 8. — Do not they that resist the
parliament's power, resist the parliament ;
and they that resist the king's power, resist
the king ; God hath joined king and power,
who dare separate them ?
Ans. — 1. If the parliament abuse their
power, we may resist their abused power,
and not their power parliamentary. Mi-
Bridges doth well distinguish (in his Anno-
tations on the " Loyal Convert ") betwixt
the king's power, and the king's will. 2.
The resisters do not separate king and
power, but the king himself doth separate
his lawful power from his will, if he work
and act tyranny out of this principle, will,
passion, lust ; not out of the royal principle
of kingly power. So far we may resist the
one, and not the other.
Quest. 9. — Why, if God might work a
miracle in the three children's resistance
active, why doth he evidence omnipotence
in the passive obedience of these witnesses?
The kingdom of Judah was Christ's birth-
right, as man and David's son. Why did
he not, by legions of men and angels,
rather vindicate his own flesh and blood,
than triumph by non-resistance, and the
omnipotence of glory to shine in his mere
suffering ?
Ans. — Who art thou that disputest with
God? He that killeth with the jaw-bone
of an ass, thousands, and he that destroyed
the numberless Midianites by only three
hundred, should no more put the three
children to an unlawful act in the one, if
they had by three men killed Nebuchad-
nezzar and all his subjects, than in the
other. But nothing is said against us in a
sophism a non causa pro causa ; except it
be proved, God would neither deliver his
three children, nor Christ from death, and
the Jews from bondage, by miraculous re-
sistance, because resistance is unlawful. And
if patient suffering is lawful, therefore, is
resistance unlawful? It is a poor conse-
quent, and a begging of the question : both
must be lawful to us ; and so we hold, of
ten lawful means, fit to compass God's
blessed end, he may choose one and let go
nine. Shall any infer, therefore, these other
THE LAW AND THE PKINCE.
229
nine means are unlawful, because God chose
a mean different from those nine, and re-
fused them? So may I answer by retor-
tion. The three hundred sinned in resisting
Midian, and defeating them. Why ? Be-
cause it should be more honour to God,
if they had, by suffering patiently the
sword of Midian, glorified God in martyr-
dom. So Christ and the apostles, who
could have wrought miracles, might have
wrought reformation by the sword, and de-
stroyed kings and emperors, the opposers of
the Lamb ; and they did reform by suffer-
ing ; therefore, the sword is unlawful in re-
formation. It followeth not. The mean
Christ used, is lawful ; therefore, all other
means that he used not, are unlawful. It
is vain logic.
Quest. 10. — Whether the coronation of
a king is any other thing but a ceremony.
Ans. — In the coronation there is, and
may be, the ceremony of a shout and an
acclamation, and the placing of a sceptre
in his right hand who is made king, and the
like ; but the coronation, in concrcto, ac-
cording to the substance of the act, is no
ceremony, nor any accidental ingredient in
the constitution of a king. 1. Because Is-
rael should have performed a mere ceremo-
nial action on Saul when they made him
king, which we cannot say ; for as the peo-
ple's act of coronation is distinctive, so is it
constitutive : it distinguished Saul from all
Israel, and did constitute him in a new
relation, that he was changed from no king
to be a king. 2. The people cannot, by a
ceremony, make a king ; they must really
put some honour on him, that was not put
on him before. Now this ceremony, which
royalists do fancy coronation to be, is only
symbolical and declarative, not really dative.
It placeth nothing in the king.
Quest. 11. —Whether subjects may limit
the power that they gave not to the king,
it being the immediate result (without in-
tervening of law or any act of man) issuing
from God only.
Ans. — 1. Though we should allow (which
in reason we cannot grant) that royal power
were a result of the immediate bounty of
God, without any act of man, yet it may be
limited by men, that it over-swell not its
banks. Though God immediately make Pe-
ter an apostle, without any act of men, yet
Paul, by a sharp rebuke, (Gal. ii.) curbeth
and limiteth his power, that he abuse it
not to Judaising. Royalists deny not, but
they teach, that the eighty priests that re-
strained Uzziah's power " from burning in-
cense to the Lord," gave no royal power to
Uzziah. Do not subjects, by flight, lay re-
straint upon a king's power, that he kill not
the subjects without cause ? yet they teach
that subjects gave no power to the king.
Certainly this is a proof of the immediate
power of the King of kings, that none can fly
from his pursuing hand, (Psal. cxxxix. 1 — 3 ;
Amos ix. 1 — 4,) whereas men may fly from
earthly kings. Nebuchadnezzar, as royalists
teach, might justly conquer some kingdoms,
for conquest is a just title to the crown, say
they. Now, the conqueror then justly not
only hmiteth the royal power of the con-
quered king, but wholly removeth his roy-
alty and unkinoeth him ; yet, we know, the
conqueror gave no royal power to the con-
quered king. Joshua and David took away
royal power which they never gave, and
therefore this is no good reason, — the people
gave not to the king royal power, therefore
they could not lawfully limit it and take it
away. 2. We cannot admit that God giv-
eth royal power immediately, without the
intervention of any act of law ; for it is an
act of law, that (Deut. xvii.) the people
chooseth such a king, not such a king ; that
the people, by a legal covenant, make Saul,
David, and Joash, kings, and that God ex-
erciseth any political action of making a
king over such subjects, upon such a con-
dition, is absurd and inconceivable ; for how
can God make Saul and David kings of Is-
rael upon this political and legal condition,
that they rule in justice and judgment, but
there must intervene a political action ? and
so they are not made kings immediately.
If God feed Moses by bread and manna, the
Lord's act of feeding is mediate, by the me-
diation of second causes ; if he feed Moses
forty days without eating any thing, the act
of feeding is immediate ; if God made Da-
vid king, as he made him a prophet, I should
think God immediately made him king; for
God asked consent of no man, of no people,
no, not of David himself, before he infused in
him the spirit of prophecy ; but he made him
formally king, by the political and legal co-
venant betwixt him and the people. I shall
not think that a covenant and oath of God
is a ceremony, especially a law-covenant, or
a political paction between David and the
people, the contents whereof behoved to be
de materia gravi et onerosa, concerning a
great part of obedience to the fifth command-
230
LEX, REX : OR,
ment of God's moral law, the duties moral
concerning religion, and mercy, and justice,
to be performed reciprocally between king
and people. Oaths, I hope, are more than
ceremonies.
Quest. 12. — Whether or no the common-
wealth is not ever a pupil, never growing
to age, as a minor under nonage doth come
not to need a tutor, but the commonwealth
being still in need of a tutor, a governor, or
king, must always be a tutor, and so the
kingdom can never come to that condition
as to accuse the king, it always being minor.
Ans. — 1. Then can they never accuse infe-
rior judges, for a kingdom is perpetually in
such a nonage, as it cannot want them, when
sometimes it wanteth a king. 2. Can the
commonwealth, under democracy and aristo-
cracy, being perpetually under nonage, ever
then quarrel at these governments and never
seek a king ? By this reason they cannot. 3.
The king, in all respects, is not a tutor —
every comparison in something beareth a
leg ; for the commonwealth, in their own
persons, do choose a king, complain of a
king, and resist an Uzziah, and tie their
elective prince to a law. A pupil cannot
choose his tutor, either his dying father, or
the living law doth that service lor him ; he
cannot resist his tutor, he cannot tie his
tutor to a law, nor limit him, when first he
chooseth him. Pupillo non licet postulare
tutorem suspecti, quamdiu sub tutela est, et
manetimpubes. (I. Pietatis 6, in sin. C. de
susp. Tutor. I. impuberem. 7, and sect, irn-
puberes. Just. eod).
Quest. 13. — Whether or no subjects are
more obnoxious to a king than clients to
patrons, and servants to masters, because
the patron cannot be the client's judge, but
some superior magistrate must judge both,
and the slave had no refuge against his
master, but only flight ; and the king doth
confer infinite greater benefits on the sub-
jects, than the master doth on the slave, be-
cause he exposeth his life, pleasure, ease,
credit, and all for the safety of his subjects.1
Ans. — 1. It is denied, for to draw the
case to fathers and lords, in respect of chil-
dren and vassals, the reason why sons, clients,
vassals, can neither formally judge, nor judi-
cially punish, fathers, patrons, lords, and mas-
ters, though never so tyrannous, is a moral
impotency, or a political incongruity, because
these relations of patron and client, fathers
1 Arnisaeus de authorit. princip., c. 3, n. 6.
and children, are supposed to be in a com-
munity, in which are rulers and judges above
the father and son, the patron and the client ;
but there is no physical incongruity that the
politic inferior punish the superior, if we sup-
pose there were no judges on the earth, and
no relation but patron and client ; and, be-
cause, for the father to destroy the children,
is a troubling of the harmony of nature, and
the highest degree of violence, therefore one
violence of self-defence, and that most just,
though contrary to nature, must be a remedy
against another violence ; but in a kingdom
there is no political ruler above both king and
people, and therefore, though nature have
not formally appointed the political relation
of a king rather than many governors and sub-
jects, yet hath nature appointed a court and
tribunal of necessity, in which the people may,
by innocent violence, repress the unjust vio-
lence of an injuring prince, so as the people
injured in the matter of self-defence may be
their own judge. 2. 1 wonder that any should
teach, That oppressed slaves had of old no
refuge against the tyranny of masters, but
only flight; for, (1.) The law expressly saith
that they might not only fly but also change
masters, which we all know was a great da-
mage to the master, to whom the servant
was as good as money in the purse.1 (2.) I
have demonstrated before, by the law of na-
ture, and out of divers learned jurists, that
all inferiors may defend themselves by op-
posing violence against unjust violence ; to
say nothing that unanswerably I have proved
that the kingdom is superior to the king. 3.
It is true, Qui plus dat, plus obligat, as the
Scripture saith, (Luke vii.,) He that giveth
a greater benefit layeth a foundation of a
greater obligation. But, 1. If benefit be
compared with benefit, it is disputable if a
king give a greater benefit than an earthly
father, to whom, under God, the son is
debtor for life and being, if we regard the
compensation of eminency of honour and
riches, that the people putteth upon the
king ; but I utterly deny that a power to
act tyrannous acts, is any benefit or obliga-
tion, that the people in reason can lay upon
their prince, as a compensation or hire for
his great pains he taketh in his royal watch-
tower. I judge it no benefit, but a great
hurt, damage, and an ill of nature, both to
1 Servi indigne habiti confugiendi ad statuas, et
dominum mutandi copiaui habent, 1. 2. De bis qui
sunt sui. Item, C. de lat. Hered. toll.
THE LAW AND THE PRINCE.
231
king and people, that the people should
give to their prince any power to destroy
themselves, and therefore that people do
reverence and honour the prince most, who
lay strongest chains and iron fetters on him,
that he cannot tyrannise.
Quest. 14. — But are not subjects more
subject to their prince, (seeing the subjection
is natural, as we see bees and cranes,) to obey
him, than servants to their Lord ?x (C. in
Apib. 7, 9, 1, ex Hiero. 4, ad Rustic.
Monach. Plin. n. 17.) F.or jurists teach,
that servitude is beside or against nature,
(/. 5, de stat. homi. sect. 2, just, et jur.
pers. c. 3, sect, et sicut Nov. 89, quib. med.
not. eff. sui.)
Ans. — There is no question, in active
subjection to princes and fathers command-
ing in the Lord, we shall grant as high a
measure as you desire. But the question is,
if either active subjection to ill and unjust
mandates, or passive subjection to penal in-
flictions of tyranny and abused power, be
natural or most natural ; or if subjects do
renounce natural subjection to their prince,
when they oppose violence to unjust viol-
ence. This is to beg the question. And for
the commonwealth of bees and cranes, and
crown and sceptre amongst them, give me
leave to doubt of it. To be subject to
kings, is a divine moral law of God ; but
not properly natural to be subject to co-
action of the sword. Government and sub-
jection to parents, is natural ; but that a
king is juris naturae, strictim, I must crave
leave to doubt. I hold him to be a divine
moral ordinance, to which, in conscience,
we are to submit in the Lord.
Quest. 15. — Whether king Uzziah was
dethroned by the people ?
Ans. — Though we should say he was not
formally unkinged and dethroned, yet if the
royal power consist in an indivisible point,
as some royalists say, and if Uzziah was re-
moved to a private house, and could not
reign, being a leper ; certainly much royal
power was taken from. It is true, Arni-
saeus saith,2 he neither could be compelled to
resign his power, nor was he compelled to
resign his royal authority ; but he willingly
resigned actual government, and remained
king, as tutors and curators are put upon
kings that are mad or stupid, and children,
1 Arnisaeus de authorit. princip. in popul. c. 3, n. 7.
2 Arnisaeus de jure Pontif. Rom. in Regna et
Princ. c. 5, n, 30.
who yet govern all by the authority of law-
ful kings. But that Uzziah did not denude
himself of the royal power voluntarily, is
clear. The reason (2 Chron. xxvi. 21)
why he dwelt in a house apart, and did not
actually reign, is, because he was a leper ;
for, " He was cut off (saith the text) from
the house of the Lord ; and Jotham, his
son, was over the king's house, judging the
people of the land." Whereby it is clear,
by the express law of God, he being a leper,
and so not by law to enter into the congre-
gation, he was cut off from the house of the
Lord ; and he being passive, is said to be
cut off from the Lord's house. Whether,
then, Uzziah turned necessity to a virtue, I
know not : it is evident, that God's law re-
moved the actual exercise of his power. If
we obtain this, which God's word doth give
us, we have enough for our purpose, though
Uzziah kept the naked title of a king, as in-
deed he took but up room in the catalogue of
kings. Now, if by law he was cut off from
actual governing, whether he was willing or
not willing to denude himself of reigning,
is all one. And to say, that furious men,
idiots, stupid men, and children, who must
do all royal acts by curators and tutors, are
kings jure, with correction, is petitio prin-
cipii ; for then hath God infused immedi-
ately from heaven (as royalists teach us) a
royal power to govern a kingdom, on those
who are as capable of royalty as blocks. I
conceive that the Lord (Deut. xvii. 14 — 17)
commandeth the people to make no blocks
kings ; and that the Lord hath not done
that himself in a binding law to us, which
we have no commandment from him to do.
I conceive that God made Josiah and Joash
kings typical, and in destination, for his pro-
mise sake to David, while they were chil-
dren, as well as he made them kings ; but
not actu completo ratione officii, to be a
rule to us now, to make a child of six years
of age a king by office. I conceive children
are to us only kings in destination and ap-
pointment ; and for idiots and fools, I shall
not believe (let royalists break their faith
upon so rocky and stony a point, at their
pleasure) that God hath made them gover-
nors of others, by royal office, who can scarce
number their own fingers ; or that God
tyeth a people to acknowledge stupid blocks
for royal governors of a kingdom, who can-
not govern themselves. But far be it from
me to argue with Bellarmme, (de pcenit. I.
3, c. 2,) from Uzziah's bodily leprosy to
232
LEX, REX ; OR,
infer that any prince who is spiritually lep-
rous and turned heretical, is presently to be
dethroned. Nothing can dethrone a king
but such tyranny as is inconsistent with his
royal office. Nor durst I infer that kings,
now a-days, may be removed from actual
government for one single transgression. It
is true, eighty priests, and the whole king-
dom, so serving king Uzziah (their motives,
I know, were divine) proveth well that the
subjects may punish the transgression of
God's express law in the king, in some
cases even to remove him from the throne ;
but as from God's commanding to stone the
man that gathered sticks on the Sabbath-
day, we cannot infer that Sabbath-breakers
are now to be punished with death ; yet we
may well argue, Sabbath-breakers may be
punished, and Sabbath-breakers are not un-
punishable, and above all law; so may we
argue here, Uzziah, though a king, was pun-
ished ; therefore kings are punishable by
subjects.
Quest. 16. — "Whether or no, as the de-
nial of active obedience in things unlawful
is not dishonourable to the king, as king, he
being obliged to command in the Lord
only, so the denial of passive subjection to
the king using unjust violence, be also no
dishonouring of the king.
Ans. — As the king is under God's law
both in commanding and in exacting active
obedience, so is he under the same regulat-
ing law of God, in punishing or demanding
of us passive subjection, and as he may not
command what he will, but what the King
of kings warranteth him to command, so may
he not punish as he will, but by warrant
also of the Supreme Judge of all the earth ;
and therefore it is not dishonourable to the
majesty of the ruler, that we deny passive
subjection to him when he punisheth beside
his warrant, more than it is against Ids ma-
jesty and honour that we deny active obe-
dience when he commandeth illegally ; else
I see not how it is lawful to fly from a ty-
rannous king, as Elias, Christ, and other of
the witnesses of our Lord have done ; and,
therefore, what royalists say here is a great
untruth, namely, that in things lawful we
must be subject actively, — in things unlaw-
ful, passively. For as we are in things lawful
to be subject actively, so there is no duty in
point of conscience, laying on us to be sub-
ject passively, because I may lawfully fly,
and so lawfully deny passive subjection to
the king's will, punishing unjustly.
Quest. 17. — Whether the prince may make
away any part of his dominions, as an island,
or a kingdom, for the safety of the whole
kingdoms he hath ; as if goods be like to
sink an over-burthened ship, the seamen
cast away a part of the goods in the sea, to
save the lives of the whole passengers ; and
if three thousand passengers being in one
ship, and the ship in a storm like to be
lost, it would seem that a thousand may
be cast over board, to save the lives of the
whole passengers.
Ans. — The kingdom being not the king's
proper heritage, it would seem he cannot
make away any part of his kingdom to save
the whole, without the express consent of
that part, though they be made away to
save the whole. In things of this kind,
men are not as the commodities of mer-
chants, nor is the case alike ; as when one
thousand, of three thousand, are to be cast
into the sea to save all the rest, and that
either by common consent, or by lots, or some
other way ; for it is one thing, when destruc-
tion is evidently inevitable, as in the casting
so many men into the sea to save the whole
and many passengers, and when a king for
peace, or for help from another king, mak-
eth away part of his dominion. The Lord
is here to be waited on in his good provi-
dence, and events are to be committed to
him ; but far less, can it be imaginably law-
ful for a king to make away a part of his do-
minions without their consent, that he may
have help from a foreign prince to destroy
the rest : this were to make merchandise of
the lives of men.1
Quest. 18. — Whether or no the conven-
ing of the subjects, without the king's will,
be unlawful.
Ans. — The convention of men, of itself,
is an indifferent thing, and taketh its speci-
fication from its causes, and manner of con-
vening, though some convention of the sub-
jects without the king, be forbidden ; yet
ratio legis est anima legis, the reason and
intent of the law, is the soul of the law.
Convention of the subjects, in a tumultuary
way, for a seditious end, to make war with-
out warrant of law, is forbidden ; but not
when religion, laws, liberties, invasion of fo-
reign enemies, necessitateth the subjects to
i Ferdinan. Vasquez Must, quest. 1. 1, c. 3, n. 8,
juri alieno quisquam nee in minima parte obesse
potest. 1. id quod nostru. F. de reg. jur. 1. jur. natu.
cod. titul. 1.
THE LAW AND THE PRIXCE.
23:;
convene, though the king and ordinary judi-
catures, going a corrupt way to pervert judg-
ment, shall refuse to consent to their con-
ventions. Upon which ground, no conven-
tion of tahles at Edinburgh, or any other
place, (an. 1637, 1638, 1639,) can be judged
there unlawful ; for if these be unlawful, be-
cause they are conventions of the leagues,
without express act of parliament, then the
convention of the leagues to quench a house
on fire, and the convention of a country to
pursue a wolf entered in the land to destroy
women and children, which are warranted
| by the law of nature, should be lawless, or
against acts of parliament.
Quest. 19. — Whether the subjects be ob-
liged to pay the debts of the king.
Ans. — These debts which the king con-
tracted! as king, in throno regali, the peo-
ple are to pay. For the law of nature and
the divine law doth prove, that to every ser-
vant and minister wages is due. (Horn. xiii.
5, 6, compared with verse 4, and 1 Cor. ix.
9—12 ; 1 Tim. v. 18.) If the prince be
taken in a war, for the defence of the people,
it is just that he be redeemed by them : so
the law saith, (tit. F. et C. de negotiis ges-
tis, et F. et C. Manda.) But, Ferdinandus
Vasquez (Must, quest. I. 1, c. 7, n. 6,
Vicesimo tertio apparet, &c.) saith, if the
prince was not doing the business of the
public, and did make war without advice
and consent of the people, then are they not
to redeem him. Now certain it is, when
the king raiseth war, and saith, " God do
so to me and mine, if I intend any thing but
peace," yet maketh war not only against his
oath, but also without consent of the parlia-
ment, and a parliament at that time convo-
cated by his own royal writ, and not raised,
and dissolved at all, but still sitting formally a
parliament ; if he borrow money from his own
subjects, and from foreign princes, to raise war
against his subjects and parliament, then the
people are not obliged to pay his debts, 1. Be-
cause they are obliged to the king only as a
king, and not as an enemy ; but in so raising-
war he cannot he considered as a king. 2.
Though if the people agree with him, and
still acknowledge him king ; it is impossible,
physice, he can be their king, and they not
pay his debts ; yet they sin not, but may,
ex decentia, non ex debito legali, pay his
debts, yet are they not obliged by any law
of God or man to pay his debts. But though
it be true, by all law the king is obliged to
pay his debt, (except we say, that all the
people's goods are the king's : a compendious
way, I confess, to pay all that any voluptu-
ous Heliogabolus shall contract,) yet it may
easily be proved, that what his subjects and fo-
reign princes lent him to the raising of an un-
just war are not properly debts, but expenses
unjustly given out under the reduplication of
formal enemies to the country, and so not
payable by the subjects ; and this is evident
by law, because one may give most unjustly
monies to his neighbour, under the notion of
loan, which yet hath nothing of the essence
of loan and debt, but is mere delapidation,
and cannot properly be debt by God's law ; for
the law regulateth a man in borrowing and
lending, as in other politic actions. If I, out
of desire of revenge, should lend monies to
a robber to buy powder and fuel to burn
an innocent city, or to buy armour to kill
innocent men, I deny that that is legally
debt. I dispute not whether A. B., bor-
rowing money formally, that thereby he may
waste it on debauchery, shall be obliged to
repay it to C. D. under the reduplication
of debt ; or if the borrower be obliged
to pay what the lender hath unjustly lent.
I dare not pray to God that all our king's
debts may be paid ; I have scarce faith so
to do.
Quest. 20. — Whether subsidies be due to
the king as king.
Ans. — There is a twofold subsidy ; one
dcbitum, of debt; another, eharitativum,
by way of charity. A subsidy of debt is
rather the kingdom's due for their neces-
sity than the king's due, as a part of his
rent. We read ol customs due to the king-
as king, and for conscience sake, (Rom. xiii.
5, 6,) never of a subsidy or taxation to the
kings of Israel and Judah, at any conven-
tion of the states. Augustus Caesar's taxing
of all the world (Luke ii.) for the mainten-
ance of wars, cannot be the proper rent of
Augustus, as emperor, but the rent of the
Roman empire ; and it is but the act of a
man. Charitative subsidies to the king, of
indulgence, because, through bad husband-
ing oi the king's rente, he hath contracted
debts, I judge no better than royal and
princely begging. Yet lawful they are, as
I owe charity to my brother, so to my father,
so to my politic father the king. See Ferd.
Vasq. (Must, quest. 1.1, e. 8) who desireth
that superiors, under the name of charity,
hide not rapine, and citeth Cicero, gravely
saying, (ojic. 1. 1,) " Nulla generi humano et
justitice major pestis est, quam eorum, qui
234
LEX, HEX.
dum maxime fallunt, id agunt, ut boni viri
esse videantur," fyc
Quest. 21. — Whether the seas, floods,
roadways, castles, ports, public magazine,
militia, armour, forts, and strongholds be
the king's.
Arts. — All these may be understood to
be the king's in divers notions. 1. They
are the king's, quoad custodiam, et publi-
cam possessionem, as a pawn is the man's in
whose hand the pawn is laid down. 2. They
are the king's, quoad jurisdictionem cumu-
lativam, non privativam. The king is to
direct, and royally to command, that the
castles, forts, ports, strongholds, armour, ma-
gazine, militia, be employed for the safety of
the kingdom. All the ways, bridges, and
public roadways, are the king's, in so far as
he, as a public and royal watchman, is to se-
cure the subject from robbers, and to cog-
nosce of unknown murders, by himself and
the inferior judges ; yet may not the king-
employ any of these against the kingdom.
3. They are the kings, as he is king, quoad
ojicialem, et regalem, et publicam proprie-
iate.n ; for he hath a royal and princely pro-
priety to all these, as his own, in so far as he
useth them according to law. 4. And thus
they are the king's also, quoad usum, in
regard of official use. But, 1. They are
the kingdom's, quoad fructum, in regard
of the effect and fruit. 2. They are the
kingdom's, finaliter, being destinated for the
safety and security of the kingdom. 3.
They are the kingdom's, quoad proprie-
tatem propriam, et legalem stride sump-
tam, according to the proper and legal
propriety ; and are not the king's proper
heritage as he is a man: 1. Because he
may not sell these forts, strongholds, ports,
magazine, bridges, &c. to a stranger, or a
foreign prince. 2. When the king is dead,
and his heirs and royal line interrupted,
these all remain proper to the kingdom ; yet
so as the state cannot, as they are men,
make them away, or sell them, more than
the king ; for no public persons, yea the mul-
titude cannot make away the security, safety,
and that which necessarily conduceth to the
security of the posterity. " The Lord build
his own Zion, and appoint salvation for
walls and bulwarks !"
DE JURE REGNI APUD SCOTOS;
A DIALOGUE
CONCERNING
THE RIGHTS OF THE CROWN IN SCOTLAND.
J5Y GEORGE BUCHANAN.
TRANSLATED INTO ENGLISH
BY ROBERT MACFARLAN. A.M.
GEORGE BUCHANAN
WISHES MUCH GOOD HEALTH TO
JAMES THE SIXTH, KING OF THE SCOTS.
Several years ago, when public affairs were in
the greatest confusion, I wrote on the prerogative
of the Scottish crown a Dialogue, in which I en-
deavoured to explain from their very cradle, if I
may use the expression, the mutual rights of our
kings and of their subjects. Though that book
seemed to have been serviceable at the time, by
shutting the mouths of certain persons, who with
importunate clamours rather inveighed against the
existing state of things than weighed what was right
in the scale of reason, yet influenced by the return
of a little tranquillity, I also laid down my arms with
pleasure on the altar of public concord. But having
lately by accident lighted on this composition among
my papers, and thought it interspersed with many
remarks necessary to a person raised like you to an
eminence so interesting to mankind, I have judged
its publication expedient, that it might both testify
my zeal for your service and also remind you of
your duty to the community. Many circumstances
also assure me that my endeavour on this occasion
will not be fruitless ; especially your age not yet
corrupted by wrong opinions ; and a genius above
your years spontaneously urging you to everything
noble; and an easy flexibility in obeying not only
your preceptors, but also all wise monitors ; and
that judgment and sagacity in disquisition, which
prevent you from allowing great weight to autho-
rity, when it is not supported by solid arguments.
I see also that, by a kind of natural instinct, you so
abhor flattery, the vile nurse of tyranny and the
very pest of legal sovereignty, that you hate the
solecisms and barbarisms of courtiers no less than
they are relished and affected by those who in their
own eyes appear connoisseurs in every species of
elegance, and, as if they were delicate seasonings to
conversation, interlard every sentence with majes-
ties, lordships, excellencies, and, if it be possible,
with other expressions of a still more offensive
savour. Though you be at present secured from
this error, both by the goodness of your natural
disposition and by the instructions of your gover-
nors, yet I cannot help being somewhat afraid that
the blandishments of that pander of vice, evil com-
munication, should give a wrong bias to a mind that
is yet so pliant and tender; especially as I am not
ignorant with what facility our other senses yield to
seduction. This treatise, therefore, I have sent you
not only as a monitor, but also as an importunate
and even impudent dun ; that in this critical turn of
life it may guide you beyond the rocks of flattery,
and not only give you advice, but also keep you in
the road which you so happily entered, and, in case
of any deviation, replace you in the line of your duty.
If you obey its directions, you will insure to your-
self and to your family in the present life temporal
tranquillity, and in the future, eternal glory. Fare-
well.
At Stirling on the 10th of Jan- j
uary in the year of the Chris- >
tian Era 1579. J
DE JURE REGNI APUD SCOTOS;
A DIALOGUE
CONCERNING*
THE RIGHTS OF THE CROWN IN SCOTLAND.
When, upon Thomas Maitland's return
lately from the continent, I had questioned
him minutely about the state of affairs in
France, I began, out of my attachment to
his person, to recommend to him a persever-
ance in that career to glory which he had so
happily begun, and to inspire him with the
best hopes of the progress and result of his
studies. For, if I, with moderate talents,
with hardly any fortune, and in an illiterate
acre, had still maintained such a conflict
with the iniquity of the times, as to be
thought to have achieved something, as-
suredly those who were born in happier
days, and possess time, wealth and genius in
abundance, ought not to be deterred from
so honourable a purpose by its labour ; and,
when aided by so many resources, cannot
reasonably yield to despair. They should
therefore proceed to use every effort in
communicating splendour to literature, and
in recommending themselves and their coun-
trymen to the notice of posterity. If they
continued for a little their joint exertions,
the consequence would be, that they would
eradicate from the minds of men an opinion,
that in the frigid regions of the globe the
learning, politeness and ingenuity of the in-
habitants diminish in proportion to their
distance from the sun ; for, though nature
may have favoured the Africans, Egyptians,
and most other nations with quicker con-
ceptions and greater keenness of intellect,
yet she has been so unkind to no tribe as to
have entirely precluded it from all access to
virtue and glory.
Here, when, according to his usual mo-
desty, he had spoken of himself with diffi-
dence, but of me with more affection than
truth, the course of conversation at last led
us so far, that, when he had questioned me
concerning the convulsed state of our coun-
try, and I had made him such an answer as
I thought calculated for the time, I began,
in my turn, to ask him what sentiments
either the French, or any strangers that
he met in France, entertained concerning
Scottish affairs ; for I had no doubt that
the novelty of the events would, as is usual,
have furnished occasion and matter for poli-
tical discussions.
" Why," says he, " do you address to me
such a question ? For, since you know the
whole train of events, and are not unac-
quainted with what most people say, and al-
most all think, you may easily conjecture,
from the internal conviction of your own
mind, what is, or at least what ought to be,
the opinion of all mankind."
B.— But the more distant foreign nations
are, and the fewer causes they have from
that distance for anger, for hatred, for love,
and for other passions likely to make the
mind swerve from truth, the more ingenu-
ous and open they commonly are in judging,
and the more freely they speak what they
think ; and this very freedom of speech and
mutual interchange of thought removes much
obscurity, disentangles many knotty points,
converts doubts into certainties, and may shut
the mouths of the dishonest and designing,
and instruct the weak and unenlightened.
240
DE JURE REGNI APUD SCOTOS ; OR,
M. — Would you have me be ingenuous in
my answer?
B.— Why not ?
M. — Though I was strongly actuated by
a desire of revisiting, after a long absence,
my country, my parents, my relations and
friends, yet nothing inflamed this passion so
much as the language of the untutored
multitude. For, however firm I had thought
the temper of my mind, rendered either by
the effects of habit or by the precepts of
philosophy, yet, when the event now under
consideration occurred, I could not, by some
fatality, conceal its softness and effeminacy.
For, as the shocking enormity here lately
exhibited was unanimously detested by all
orders of men, and the perpetrator still un-
certain, the vulgar, always swayed rather by
momentary impulse than by sound discre-
tion, imputed a fault of a few to the many ;
and the common hatred to the misdeed of
private individuals so overwhelmed the
whole nation, that even those who stood
most remote from suspicion laboured under
the infamy of other men's crimes. There-
fore, till this storm of calumny should sub-
side into a calm, I readily took shelter in
this port, where, however, I fear that I
have struck against a rock.
B. — For what reason, I beseech you ?
M. — Because the minds of all men, being
already heated, seem to me likely to be so
much inflamed by the atrocity of the late
crime as to leave no room for defence. For
how can I resist the attack not only of the
uninformed multitude, but even of those
who assume the character of politicians,
while both will exclaim that our ferocious
rage was not satiated by murdering, with
unparalleled cruelty, an innocent youth, but
exhibited a new example of barbarity in
the persecution of women, a sex that is
spared even by hostile armies at the capture
of cities ? From what horror, indeed, will
any dignity or any majesty deter men who
are guilty of such outrage to their princes ?
After these enormities, whom will justice,
morality, law, respect for sovereignty or
reverence for legal magistracy, restrain
through shame or check through fear?
When the exercise of the supreme execu-
tive power is become the ridicule of the
lowest rabble, when trampling upon every
distinction between right and wrong, be-
tween honour and dishonour, men degener-
ate, almost by common consent, into savage
barbarity. To these and still more atrocious
charges I know that I shall be forced, upon
my return to France, to listen, as the
ears of all have in the meantime been so
thoroughly shut as to be susceptible of no
apology, nor even of a satisfactory defence.
B. — But I will easily relieve you from
this apprehension, and clear our nation from
so false an imputation. For, if foreigners
so heartily execrate the heinousness of the
antecedent crime, where is the propriety of
reprobating the severity of the subsequent
punishment ? Or, if they are vexed at the
degradation of the queen, the former must
necessarily meet with their approbation.
Do you, therefore, choose to which of the
two cases you wish to attach guilt ; for
neither they nor you, if you mean to be
consistent, can either praise or dispraise
both.
M. — The murder of the king I certainly
detest and abominate, and am glad that the
odium of conscious guilt does not fall upon
the public, but is attributable to the villany
of a few desperadoes ; but the latter act I
cannot either wholly approve or disapprove.
The detection by sagacity and industry of
the most nefarious deed mentioned in any
history, and the vengeance awaiting the
wicked perpetrators from open hostilities,
appear to me glorious and memorable
achievements. But with the degradation of
the chief magistrate, and with the contempt
brought upon the royal name, which has
been among all nations constantly held
sacred and inviolable, I know not how all
the nations of Europe will be effected,
especially those that live under a regal
government. As for myself, though not
ignorant of the adverse pretences and alle-
gations, I feel violent emotions either from
the magnitude or novelty of the event ; and
the more so that some of its authors are
connected with me by the closest intimacy.
B. — Now, methinks, I can nearly discern
what it is that affects you, but not perhaps
so much as it touches those iniquitous esti-
mators of other men's merit, to whom you
think, satisfaction is due. Of those who will
violently condemn the forcible seizure of the
queen, I reckon three principal divisions.
One is peculiarly pernicious, as it compre-
hends the panders to the lusts of tyrants,
wretches who think no act unjust or dis-
honourable by which they conceive that
kings may be gratified, and who measure
every thing not by its intrinsic value, but by
the passions of their masters. These are
THE RUMITS OF THE CROWN IN SCOTLAND.
241
such venal devotees to the desires of an-
other that they have retained freedom
neither of speech nor of action. From this
band proceeded the banditti, who, [without
any cause of enmity, and merely with the
hopes of preferment and power at court,
sacrificed, in the most cruel manner, an in-
nocent youth to another's lust. While these
hypocrites pretend to lament the fate of the
queen, and to sigh and groan over her mise-
ries, they mean only to provide for their
own security, and really grieve at seeing the
enormous reward for their execrable villany,
which they had devoured in imagination,
snatched out of their jaws. This sort of
people ought, therefore, in my opinion, to
be chastised not so much by words as by
the severity of the laws and by the force of
arms. Others look totally to their own af-
fairs. These, though in other respects by
no means bad men, are not vexed, as they
would wish us to think, at the injury done to
the public, but at their own domestic losses ;
and therefore seem to me to need consola-
tion rather than any remedy derivable from
reason or from law. The remainder consist
of the rude and undistinguishing multitude,
who wonder and gape at every novelty, who
censure almost every occurrence, and think
hardly anything right but what is either
their own act or what is done under their
own eye. For every departure from the
practice of their ancestors they think a pro-
portionate deviation from justice and equity.
These being swayed neither by malice nor
by envy, nor by any regard to self-interest,
are generally susceptible of instruction and
of being reclaimed from error, and com-
monly yield to the force of reasoning and
conviction ; a truth of which we now have,
and formerly often had, experience in the
case of religion ; for
Where's the savage we to tame should fear,
If he to culture lend a patient ear ?
M. — That remark we have more than
once found to be perfectly just.
B. — What if, in order to silence this
multitude, you should ask the most clamor-
ous and importunate their opinion concern-
ing the fate of Caligula, of Nero and of Do-
mitian ; I presume that none of them would
be so servilely attached to the regal name
as not to acknowledge that they were justly
punished ?
M. — Possibly what you say may be true.
But the same persons will immediately ex-
claim that they do not complain of the
punishment of tyrants, but feel indignant
at the undeserved calamities of legal sove-
reigns.
B. — Do not you then see how easily the
multitude may be pacified ?
M. — Not yet. The matter seems to re-
quire more elucidation.
B. — I will, by a few words, make it intel-
ligible. The vulgar, according to you, ap-
prove the murder of tyrants, but compas-
sionate the sufferings of kings. Do not you
think, then, that if they should clearly un-
derstand the difference between a tyrant
and a king, it will be possible, in most par-
ticulars, to alter their opinion ?
M. — Were all to acknowledge the justice
of killing tyrants, it would open a wide inlet
for the diffusion of light upon the subject.
But some men there are, and those of no
contemptible authority, who, though they
subject legal sovereigns to penal laws, con-
tend for the sacredness of tyrants; and,
though their decision is certainly in my opi-
nion absurd, yet they are ready to fight
for their government, however extravagant
and intolerable, as for their own altars "and
hearths.
B. — I also have more than once met with
various individuals who obstinately main-
tained the same doctrine ; but whether
they were right or wrong we shall else-
where more commodiously examine. In
the meantime, if you will, let this point be
taken for granted, upon condition that, if
you do not afterwards find it sufficiently de-
monstrated, you may at pleasure resume the
subject for discussion.
M. — Upon these terms I have no objec-
tion.
B. — We shall then establish it as an axiom
that a king and a tyrant are contraries.
M.— Be it so.
B. — He then who has explained the ori-
gin and the causes of creating kinos, and the
duties of kings to their subjects, and of sub-
jects to their kings, must be allowed to have
by the contrast, nearly explained whatever
relates to the nature of a tyrant.
M. — I think so.
B. — And when the picture of each is ex-
hibited, do not you think that the people
will also understand what is their duty to
each?
M. — Nothing is more likely.
B.— But in things extremely dissimilar,
and withal of the same general class, there
2K
212
JURE REGNI APUD SCOTOS ; OR,
may be certain dissimilarities very apt to
lead the inadvertent into error.
M. — That may indisputably be the case,
and particularly when an inferior character
finds it easy to assume the appearance of a
superior, and studies nothing so much as to
impose upon ignorance.
B. — Have you in your mind any distinct
picture of a king and a tyrant, for, if you
have, you will ease me of much labour ?
M. — The figure of both, which I have in
my mind, I could certainly delineate with
ease ; but it would appear to your eyes, I
fear, rude and misshapen. Therefore, lest,
by forcing you to rectify my errors, the con-
versation should exceed the due bounds, I
choose rather to hear the sentiments adop-
ted by you, who have the advantage of me
both in age and experience, and not only
know the opinions of others, but have also
visited in person many states, and noted
their manners and customs.
B. — That I shall do, and with pleasure ;
nor shall I expound so much my own as the
opinion of the ancients, that more weight and
authority may accompany my words, as not
being framed for the present occasion, but
extracted from the doctrines of those who
were entirely unconnected with this contro-
versy, anddelivered their sentiments with no
less eloquence than brevity, without hatred,
without favour or envy, for which they could
not have the most distant motive ; and I
shall adopt principally the opinions not of
those who grew old in the shades of inacti-
vity, but of men who were in well-regulated
states distinguished at home and abroad for
wisdom and virtue. But, before I produce
their testimony, I wish to ask you a few
questions, that, when we have agreed upon
some points of no small importance, I may
not be compelled to deviate from my in-
tended course, and to dwell either upon
the explanation or confirmation of matters
that are evident, and almost acknowledged
truths.
M. — Your plan I approve ; and, there-
fore, if you have any question to ask, pro-
ceed?
B. — Is it your opinion that there was a
time when men lived in huts and even in
caves, and strolled at random, without laws,
without settled habitations, like mere va-
grants, uniting in herds as they were led by
fancy and caprice, or invited by some con-
venience and common advantage ?
M. — That is certainly my firm belief;
for it is not only consonant to the order of
nature, but also sanctioned by almost all the
histories of all nations. Of that rude and
uncultivated life we have, from Homer's pen,
a picturesque description soon after the Tro-
jan war among the Sicilians : —
" By them no statute and no right was known,
No council held, no monarch fills the throne ;
But high on hills or airy cliffs they dwell,
Or deep in caverns or some rocky cell ;
Each rules his race, his neighbour not his care,
Heedless of others, to his own severe."
At the same period, too, Italy is said to
have been equally uncultivated; so that,
from the state of the most fertile regions of
the globe, it is easy to form a conjecture that
the rest were nothing but wild and desolate
wastes.
B. — But which of the two do you think
most conformable to nature ; that vagrant
and solitary life, or the social and unanimous
assemblage of men ?
M. — Undoubtedly the unanimous assem-
blage of men, whom
" Utility herself, from whom, on earth,
Justice and equity derive their birth,"
first collected into masses and taught,
" Fenc'd by one wall, and by one key and bar,
From open'd gates to pour the tide of war."
B. — What ! do you imagine that utility
was the first and principal cause of human
union?
M. — Why not ? since the lesson incul-
cated by the greatest sages is, that men
were made by nature for men.
B.— To certain individuals, indeed, uti-
lity seems to have great influence, both in
the formation and in the maintenance of
society. But, if I am not mistaken, their
assemblage claims a much higher origin,
and the bond of their union is of a much
earlier and more venerable date. For, if
every individual were to pay attention only
to his own interest, there is ground for sus-
pecting, I fear, that this very utility would
rather dissolve than unite society.
M. — That observation may, perhaps, be
true. But I should be glad to hear what is
your other source of human association.
B. — It is a certain innate propensity, not
only in men, but also in other animals of
the gentler tribes, to associate readily, even
without the allurements of utility, with be-
ings of their own species. But of the brute
creation it is not our present business to
THE RIGHTS OF THE CROWN IN SCOTLAND.
243
treat. Men we certainly find so deeply
impressed, and so forcibly swayed by this
natural principle, that, if any of them were
to enjoy, in abundance, everything that is
calculated either for the preservation and
health of the body, or for the pleasure and
amusement of the mind, he must, without
human intercourse, experience life to be a
burden. This is such a notorious truth that
even the persons who, from a love of science
and a desire of investigating truth, have re-
tired from the bustle of the world and lived
recluse in sequestered retreats, have neither
been able, for a length of time, to bear a per-
petual exertion of mind, nor, upon discover-
ing the necessity of relaxation, to remain
immured in solitude, but readily produced
the very result of their studies ; and, as if
they had laboured for the common good,
added the fruit of their labours to the com-
mon stock. Hence it is my opinion, that if
any person be so attached to solitude as to
shun and fly the society of men, he is ac-
tuated rather by a disease of the mind than a
principle of nature. Such, according to
report, was Timon of Athens, and Belle-
rophon of Corinth,
" A wretch, who, preying in corrosive pain
On his own vitals, roam'd the Aleian plain
With comfortless and solitary pace,
Shunning the commerce of the human race."
M. — Here our sentiments are not far
from coincidence. But the term nature,
adopted by you, is an expression, which,
from habit, I often use rather than under-
stand ; and it is applied by others so va-
riously, and to such a multitude of objects,
that I am generally at a loss about the idea
which it conveys.
B. — At present I certainly wish nothing
else to be understood by it but the light in-
fused into our minds by the divinity ; for,
since God created this dignified animal
" Erect, of deeper reach of thought possess'd,
And fit to be the lord of all the rest,"
he not only bestowed upon his body eyes,
by whose guidance he might shun what is
adverse, and pursue what is adapted to his
condition, but also presented to his mind a
kind of light, by which he might distinguish
vice and infamy from virtue and honour.
This power some call nature, some the law
of nature : I certainly hold it to be divine,
and am thoroughly persuaded that
" Nature and wisdom's voices are the same,"
Of this law, too, we have from God a kind
of abridgement, comprehending the whole
in a few words, when he commands us to
love him with all our heart, and our neigh-
bours as ourselves. The sacred volumes, in
all the books which relate to the formation
of mortals, contain hardly anything else but
an explanation of this law.
M. — Do you then conceive that human
society derives its origin not from any ora-
tor or lawyer that collected the dispersed
tribes of men, but from God himself?
B. — That is positively my opinion ; and,
in the words of Cicero, I think that no-
thing done upon earth is more acceptable to
the sovereign Diety, that rules this world,
than assemblages of men called states, and
united upon principles of justice. The dif-
ferent members of these states politicians
wish to have connected by ties similar to
the coherence subsisting between all the
limbs of our body, to be cemented by mu-
tual good offices, to labour for the general
interest, to repel dangers and secure ad-
vantages in common, and, by a reciprocation
of benefits, to conciliate the affections of
the whole community.
M. — You do not then assign utility as
the cause of men's union in society, but the
law implanted in our minds by God at our
birth, which you hold to be a much higher
and more divine origin ?
B. — I admit of utility as one cause, but
not as the absolute mother of justice and
equity, as some would have her ; but rather
as her handmaid, and one of the guardians
of a well-regulated community.
M. — Here also I have no difficulty in
expressing my concurrence and assent.
B. — Now as our bodies, which consist of
repugnant principles, are liable to diseases,
that is, to passions and certain internal com-
motions ; so in like manner must those
larger bodies called states, as they are com-
posed of different, and in some measure, of
incompatible ranks, conditions, and disposi-
tions of men, and of men, too,
" Who cannot, with a fixed and steady view,
Even for an hour a single plan pursue."
Hence, the latter must certainly, like the
former, come to a speedy dissolution, unless
their tumults are calmed by a kind of phy-
sician, who, adopting an equable and salu-
tary temperament, braces the weaker parts
by fomentations, checks the redundant hu-
mours, and provides for the several mem-
2i4
JURE RKGXI APUD SCOTOS ; OR,
bers, so that neither the feebler parts may
waste through want, nor the stronger grow
tao luxuriant through excess.
M. — These would be the consequences
that must inevitably ensue.
B.— By what name shall we qualify him
who shall perform the part of physician to
the body politic ?
M. — About the name I am not very
anxious; but such a personage, whatever
Ins name may be, I hold to be of the first
excellence, and to have the strongest re-
semblance to the divinity. In this respect
much forecast seems discovered in the wis-
dom of our ancestors, who distinguished an
office so honourable in its own nature by a
very splendid name. For you mean, I sup-
pose, a king, a term, of which the import
is such, that it renders a thing of the most
excellent and transcendent nature almost
visible to our eyes.
B. — You judge rightly, for by that ap-
pellation we address the Deity; since we
have not a more magnificent title to express
the pre-eminence of his excellent nature,
nor one better adapted for expressing Lis
paternal care and affection. Why should I
collect other words that are metaphorically
used to signify the office of a king, such as
father, shepherd of the people, guide, prince,
and governor? The latent intention of all
these expressions is to show that kings were
made not for themselves but for the people.
And, now that we seem agreed about the
name, let us, if you please, discuss the office,
still treading the path which we have hither-
to pursued.
M. — What path I beseech you ?
B. — You recollect what has been just
said, that states have a great resemblance
to the human body, civil commotions to di-
seases, and kings to physicians. If there-
fore we understand the business of a physi-
cian, we shall not be far, I presume, from
comprehending the duty of a king.
M. — It may be so ; for, by the compara-
tive view which you have exhibited, they
i '■ appear to have not only a great resemblance,
but even a strong affinity.
B. — Do not expect that I should here
discuss every minute particular ; for it is
what is neither allowed by the limits of our
time, nor required by the nature of the sub-
ject. But, if I show you that there is a strik-
ing similarity in the most prominent features,
your own imagination will readily suggest
what is omitted, and complete the picture.
M. — Proceed, as you have begun.
B. — Each seems also to have the same
object in view.
M.— What object ?
B. — The preservation of the body com-
mitted to his care.
M. — I understand. For the one ought,
as far as the nature of the case will admit,
to maintain the human body, and the other
the body politic, in a sound state ; and,
when they happen to be affected with a
disease, to restore them to good health.
B. — Your conception of the matter is
just ; for the office of each is twofold,- — the
maintenance of a sound, and the recovery of
a distempered constitution.
M.— Such is my idea.
B. — For in both cases the diseases are
similar.
M. — So they seem.
B. — For both are injured by a certain
redundance of what is noxious, and by a
deficiency of what is salutary; and they
are both cured nearly by a similar process,
either by nursing, or gently cherishing the
body when emaciated, or relieving it when
full and overburdened by the discharge of
superfluities, and by moderate exercise and
labour.
M. — Such is the fact. But there seems
to be this difference, that in the one the
humours, in the other the morals, must be
duly tempered.
B. — You are perfect master of the sub-
ject ; for the body politic, like the natural,
has its peculiar kind of temperament, which
I think we may, with the greatest propriety,
denominate justice ; since it is she that pro-
vides for its distinct members, and makes
them perform their duties with uniformity.
Sometimes by the operation of bleeding,
sometimes by the discharge of noxious mat-
ter, she, by a kind of evacuation, expels re-
dundancies; sometimes she rouses despon-
dence and pusillanimity, and administers
consolation to diffidence, and reduces the
whole body to the temper mentioned above,
and exercises it, when thus reduced, by
suitable labours; so that, by a regular and
due intermixture of labour and rest, she
preserves, as far as the thing is possible, the
renovated constitution.
M. — To all your positions I would x-eadily
assent, had you not made justice the tem-
perament of the body politic ; for, by its
very name and profession, temperance seems
rightfully entitled to that office.
Tin: wghts of Tiui crowx ix scotlaxd.
245
B. — I think it of no great moment on
which of the two you confer this honour.
For, as all the virtues, of which the energy-
is visible in action, consist in the observation
of a due and uniform medium, they are so
mutually interwoven and connected, that
they seem all to have but one object, the
moderation of the passions. Under what-
ever general head it may be classed, it is of
little impoi-tance which of the two names
you adopt ; and yet that moderation, which
is exerted in common affairs and in the or-
dinary commerce of life, may, in my opinion,
be with the greatest propriety denominated
justice.
M. — Here I have no difficulty in yielding
my assent.
B. — Now, I imagine that the intention
of the ancients in creating a king was, ac-
cording to what we are told of bees in their
hives, spontaneously to bestow the sove-
reignty on him who was most distinguished
among his countrymen for singular merit,
and who seemed to surpass all his fellows in
wisdom and equity.
M. — That is probably the fact.
B. — But what must be done, if no such
' person can be found in the community ?
M. — By the law of nature mentioned be-
fore, an equal has neither the power nor
: right of assuming authority over his equals ;
for I think it but justice that among persons
in other respects equal, the returns of com-
: mand and obedience should also be equal.
B. — But, if the people, from a dislike to
an ambitious canvass every year, should
choose to elect as king an individual not
possessed indeed of every regal virtue, but
still eminent for nobility, for wealth or
military glory, might not he, with the great-
est justice, be deemed a king ?
M. — Undoubtedly ; for the people have
a right of investing whom they please with
the sovereign power.
B. — Suppose that we should employ, for
the cure of diseases, a man of considerable
acuteness, but still not possessed of extra-
ordinary skill in the medical art, must we
directly, upon his election by the generality,
consider him as a physician ?
M. — By no means. For learning and
experience in many arts, and not votes,
constitute a physician.
B. — What do you think of the artists in
the other professions ?
M. — I think that the same reasoning is
applicable to them all.
B. — Do you believe that it requires any
art to discharge the functions of a king ?
M.— Why should I not ?
B. — Can you give any reason for your
belief?
M. — I think I can; and it is that which
is peculiar to all the arts.
B. — What reason do you mean ?
M. — All the arts certainly originated in
experience. For, while most people pro-
ceeded at random and without method in
the performance of many actions, which
others completed with superior skill and
address, men of discernment, having re-
marked the results on both sides, and
weighed the causes of these results, ar-
ranged several classes of precepts, and called
each class an art.
B. — By the means, therefore, of similar
remarks, the art of sovereignty may be de-
scribed as well as that of medicine ?
M. — That I think possible.
B. — On what precepts then must it be
founded ?
M. — I am not prepared to give you a
satisfactory answer.
B. — Perhaps its comparison with other
arts may lead to its comprehension.
M. — In what manner ?
B. — Thus. There are certain precepts
peculiar to grammar, to medicine, and to
agriculture.
M. — I comprehend.
B. — May we not call these precepts of
grammar and medicine also arts and laws,
and so on in other cases ?
M. — So I certainly think.
B. — What do you think of the civil law ?
Is it not a system of precepts calculated for
sovereigns ?
M. — So it seems.
B. — Ought it not then to be understood
by him who would be created a king ?
M. — The inference appears to be una-
voidable.
B. — What shall we then say of him who
does not understand it ? Do you conceive
that, even after his nomination by the peo-
ple, he shall not be called king ?
M. — Here you reduce me to a dilemma ;
for, to make my answer compatible with the
preceding concessions, I must affirm that
the suffrages of the people can no more
make a king than any other artist.
B. — What, then, do you think ought to
be done in this case ? For, if the person
elected by common suffrage is not a king,
246
DE JURE REGNI APUD SCOTOS ; OR,
I fear that we are not likely to have any
legal sovereign.
M. — I also am not without the same fear.
B. — Is it your pleasure, then, that the
position just laid down in comparing the
arts should he discussed with greater mi-
nuteness ?
M. — Be it so, if you think it necessary.
B. — Did we not, in the several arts, call
the precepts of the several artists laws ?
M.— We did.
B. — But I fear that we did not then use
sufficient circumspection.
M.— Why so ?
B. — Because it seems an absurdity to
suppose that he who understands any art
should not be an artist.
M. — It is an absurdity.
B. — Ought we not therefore to consider
him, who can perform what belongs to art,
an artist, whether it proceeds from the
spontaneous impulse of nature, or from an
habitual facility acquired by a constant re-
petition of similar acts ?
M. — I think so.
B. — Him, then, who possesses either the
method or the skill to do anything lightly,
we may term an artist, if he has by practice
acquired the requisite power ?
M. — With more propriety, undoubtedly,
than the other who understands only the
bare precepts, without practice and experi-
ence.
B. — The precepts, then, are not to be
considered as the art ?
M. — By no means ; but rather the sem-
blance of art, or, more nearly still, its
shadow.
B. — What then is that directing power
in states that we are to call either the art
or science of politics.
M. — I suppose that you mean the provi-
dential wisdom, from which, as a fountain,
all laws calculated for the benefit of human
society must flow.
B. — You have hit the mark. Therefore,
if any man should possess this wisdom in the
highest degree of perfection, we might call
him a king by nature, not by suffrage, and
invest him with unlimited power. But, if
no such person can be found, we must be
satisfied with the nearest approach to this
excellency of nature, and, in its possessor
grasping a certain resemblance of the desired
reality, call him king.
M. — Let us honour him with that title,
if you
B. — And, because there is reason to fear
that he may not have sufficient firmness of
mind to resist those affections which may,
and often do, cause deviations from recti-
tude, we shall give him the additional assist-
ance of law, as a colleague, or rather as a
regulator of his passions.
M. — It is not, then, your opinion, that a
king should in all matters be invested with
arbitrary power ?
B. — By no means; for I recollect that
he is not only a king, but also a man erring
much through ignorance, offending much
through inclination, and much almost against
his will ; as he is an animal readily yielding
to every breath of favour or hatred. This
imperfection of nature too is generally in-
creased by the possession of office ; so that
here, if anywhere, I recognise the force of
the sentiment in the comedy, when it says,
that " by unrestrained authority we all be-
come worse." For this reason legislative
sages supplied their king with law, either to
instruct his ignorance or to rectify his mis-
takes. From these remarks you may, I
presume, conceive, as in a typical represen-
tation, what my idea isof a genuine king's
duty.
M. — In whatever regards the creation of
kings, their name and their office, you have
given me entire satisfaction ; and yet, if you
wish to make any additions, I am ready to
listen. But, though my imagination hurries
on with eagerness to the remainder of your
discussion, one circumstance, which through
your whole discourse gave me some offence,
must not pass in silence ; and it is this, that
you seemed to be a little too hard upon
kings ; an act of injustice of which I have
before frequently suspected you, when I
heard the ancient republics and the modern
state of Venice become in your mouth the
subjects of extravagant encomiums.
B. — In this case you did not form a just
idea of my sentiments ; for, among the Ko-
mans, the Massilians, the Venetians, and
others who held the directions of the laws to
be more sacred than the commands of then-
kings, it is not so much the diversity as the
equity of their civil administration that I
admire ; nor do I think it of much conse-
quence whether the supreme magistrate be
called king, duke, emperor, or consul, if it
be observed as an invariable maxim, that it
was for the express purpose of maintaining
justice and equity that he was invested with
the magistracy. For, if the plan of govern-
THE RIGHTS OF THE CROWN IN SCOTLAND.
247
merit be founded on law, there is no just
reason for disputing about its name. The
person whom we call the Doge of Venice is
nothing else but a legal sovereign ; and the
first Roman consuls retained not only the
ensigns but also the powers of the ancient
kings. The only difference was that, as, to
your knowledge, was the case with the per-
petual kings of the Lacedaemonians, the pre-
siding magistrates were two, and established
not for a perpetuity, but for a single year.
Hence, we must still adhere steadily to what
was asserted at the commencement, that
kings were at first constituted for the main-
tenance of justice and equity. Had they
been able to abide inviolably by this rule,
they might have secured perpetual posses-
sion of the sovereignty, such as they had
received it, that is, free and unshackled by
laws. But, as the state of human affairs
has, according to the usual progress of every
created existence, a constant tendency to
deterioration, regal government, which was
originally instituted for the purposes of pub-
lic utility, degenerated gradually into impo-
tent tyranny. For, when kings observed no
laws but their capricious passions, and find-
ing their power uncircumscribed and immo-
derate, set no bounds to their lusts, and were
swayed much by favour, much by hatred,
and much by private interest, their domi-
neering insolence excited an universal desire
for laws. On this account, statutes were
enacted by the people, and kings were, in
their judicial decisions, obliged to adopt, not
what their own licentious fancies dictated,
but what the laws, sanctioned by the people,
ordained. For they had been taught, by
many experiments, that it was much safer
to trust their liberties to laws than to kings;
since many causes might induce the latter
to deviate from rectitude; and the former,
being equally deaf to prayers and to threats,
always maintained an even and invariable
tenor. Kings being accordingly left, in
other respects, free, found their power con-
fined to prescribed limits only by the neces-
sity of squaring their words and actions by
the directions of law, and by inflicting pun-
ishments and bestowing rewards, the two
strongest ties of human society, according to
its ordinances ; so that, in conformity to the
expressions of a distinguished adept in poli-
tical science, a king became a speaking law,
and law a dumb king.
M. — x\t the first outset of your discourse,
you were so lavish in praise of kings, that
the veneration due to their august majesty
seemed to render them almost sacred and
inviolable. But now, as if actuated by
repentance, you confine them to narrow
bounds, and thrust them, as it were, into
the cells of law, so as not to leave them
even the common freedoms of speech. Me
you have egregiously disappointed ; for I
was in great hopes that, in the progress of
your discourse, you would, either of your
own accord or at my suggestion, restore
what an illustrious historian calls the most
glorious spectacle in the eyes of gods and
men to its original splendour ; but, by spoil-
ing of every ornament, and circumscribing
within a close prison the magistracy first
known in the world, you have so debased it,
that to any person in his sober senses it
must be an object of contempt rather than
of desire. For can there be a man, whose
brain is not deranged, that would not choose
rather to rest satisfied with a moderate for-
tune in a private station, than, while he is
intent upon other men's business and inat-
tentive to his own, to be obliged, in the
midst of perpetual vexations, to regulate the
whole course of his life by the caprice of the
multitude ? Hence, if it be proposed that
this should everywhere be the condition of
royalty, I fear that there will soon be a
greater scarcity of kings than in the first
infancy of our religion there was of bishops.
Indeed, if this be the criterion by which we
are to estimate kings, I am not surprised
that the persons who formerly accepted of
such an illustrious dignity, wTere found only
among shepherds and ploughmen.
B. — Mark, I beseech you, the egregious
mistake which you commit, in supposing
that nations created kings not for the main-
tenance of justice, but for the enjoyment of
pleasure. Consider how much, by this plan,
you retrench and narrow their greatness.
And, that you may the more easily compre-
hend what I mean, compare any of the kings
whom you have seen, and whose resemblance
you wish to find in the king that I describe,
when he appears at his levee dressed, for
idle show, like a girl's doll, in all the colours
of the rainbow, and surrounded with vast
parade by an immense crowd ; compare, I
say, any of these with the renowned princes
of antiquity, whose memory still lives and
flourishes, and will be celebrated among the
latest posterity, and you will perceive that
they were the originals of the picture that I
have just sketched. Have you never heard
248
DE JURE REGNI APUD SCOTOS
in conversation, that Philip of Macedon,
upon answering an old woman that begged
of him to inquire into a grievance of which
she complained, " That he was not at lei-
sure," and upon receiving this reply, " Cease,
then, to be a king ;" — have you heard, I say,
that this king, the conqueror of so many
states, and the lord of so many nations, when
reminded of his functions by a poor old
woman, complied and recognised the official
duty of a king ? Compare this Philip, then,
not only with the greatest kings that now
exist in Europe, but also with the most re-
nowned in ancient story, and you will find
none his match in prudence, fortitude, and
patience of labour, and few his equals in
extent of dominion. Leonidas, Agesilaus,
and other Spartan kings, all great men, I
forbear to mention, lest I should be thought
to produce obsolete examples. One saying,
however, of Gorgo, a Spartan maid, and the
daughter of king Cleomedes, I cannot pass
unnoticed. Seeing his slave pulling off the
slippers of an Asiatic guest, she exclaimed,
in running up to her father, " Father, your
guest has no hands." From these expres-
sions, you may easily form an estimate of
the whole discipline of Sparta, and of the
domestic economy of its kings. Yet, to this
rustic, but manly, discipline, we owe our
present acquisitions, such as they are ; while
the Asiatic school has only furnished slug-
gards, by whom the fairest inheritance, the
fruit of ancestral virtue, has been lost
through luxury and effeminacy. And,
without mentioning the ancients, such not
long ago among the Gallicians was Pelagius,
who gave the first shock to the power of the
Saracens in Spain. Though
" Beneath one humble roof, their common shade,
His sheep, his shepherds, and his gods were laid ;"
yet the Spanish kings are so far from being
ashamed of him, that they reckon it their
greatest glory to find their branch of the
genealogic tree terminate in his trunk. But,
as this topic requires a more ample discus-
sion, let us return to the point at which the
digression began. For I wish, with all pos-
sible speed, to evince what I first promised,
that this representation of royalty is not a
fiction of my brain, but its express image, as
conceived by the most illustrious statesmen
in all ages; and, therefore, I shall briefly
enumerate the originals from which it has
been copied. Marcus Tullius Cicero's vo-
lume concerning moral duties is in universal
esteem, and in the second book of it you will
find these expressions : — " In my opinion,
not only the Medes, as Herodotus says, but
also our ancestors, selected men of good
morals as kings, for the purpose of enjoying
the benefit of justice. For, when the needy
multitude happened to be oppressed by the
wealthy, they had recourse to some person
of eminent merit, who might secure the
weak from injury, and, with a steady arm,
hold the balance of law even between the
high and low. And the same cause, which
rendered kings necessary, occasioned the in-
stitution of laws. For the constant object of
pursuit was uniform justice, since otherwise
it would not be justice. When this advan-
tage could be derived from one just and
good man, they were satisfied; but, when
that was not the case, they enacted laws
that should at all times, and to all persons,
speak the same language. Hence the de-
duction is evident, that those were usually
selected for supreme magistrates of whose
justice the multitude entertained a high
opinion ; and, if besides they had the addi-
tional recommendation of wisdom, there was
nothing which they thought themselves in-
capable of acquiring under their auspices."
From these words you understand, I pre-
sume, what, in Cicero's opinion, induced
nations to wish both for kings and for laws.
Here I might recommend to your perusal
the works of Xenophon, who was no less
distinguished for military achievements than
for attachment to philosophy, did I not
know your familiarity with him to be such
that you can repeat almost all his sentences.
Of Plato, however, and Aristotle, though I
know how much you prize their opinions, I
say nothing at present; because I choose
rather to have men illustrious for real action,
than for their name in the shades of acade-
mies, for my auxiliaries. The stoical king,
such as he is described by Seneca in his
Thyestes, I am still less disposed to offer to
your consideration, not so much because he
is not a perfect image of a good king, as be-
cause that pattern of a good prince is solely
an ideal conception of the mind, calculated
for admiration rather than a well-grounded
hope ever likely to be gratified. Besides,
that there might be no room for malevolent
insinuations against the examples which I
have produced, I have not travelled into the
desert of the Scythians for men who either
curried their own horses, or performed any
other servile work incompatible with our
THE RIGHTS OF THE CROWN IN SCOTLAND.
249
manners, but into the heai-t of Greece, and
for those men who, at the very time when
the Greeks were most distinguished for the
liberal and polite arts, presided over the
greatest nations and the best-regulated com-
munities, and presided over them in such a
manner, that, when alive, they acquired the
highest veneration among their countrymen,
and left, when dead, their memory glorious
to posterity.
M. — Here, if you should insist upon a de-
claration of my sentiments, I must say that
I dare hardly confess either my inconsistency,
or timidity, or other anonymous mental in-
firmity. For, whenever I read in the most
excellent historians, the passages which you
have either quoted or indicated, or hear their
doctrines commended by sages whose autho-
rity I have not the confidence to question,
and praised by all good men, they appear
to me not only true, just, and sound, but
even noble and splendid. Again, when I
direct my eye to the elegancies and niceties
of our times, the sanctity and sobriety of the
ancients seem rather uncouth and destitute
of the requisite polish. But this subject we
may, perhaps, discuss some other time at
our leisure. Now proceed, if you please,
to finish the plan which you have begun.
B. — Will you allow me, then, to make a
brief abstract of what has been said ? Thus
we shall best gain a simultaneous view of
what has passed, and have it in our power to
retract any inconsiderate or rash concession.
M. — By all means.
B. — First of all, then, we ascertained that
the human species was, by nature, made for
society, and for living in a community ?
M. — We did so.
B. — We also agreed that a king, for being
a man of consummate virtue, was chosen as
a guardian to the society.
M. — That is true.
B. — And, as the mutual quarrels of the
people had introduced the necessity of creat-
ing kings, so the injuries done by kings to
their subjects occasioned the desire of laws.
M — I own it.
B. — Laws, therefore, we judged a speci-
men of the regal art, as the precepts of me-
dicine are of the medical art.
M.— We did so.
B. — As we could not allow to either a
singular and exact knowledge of his art, we
judged it safer that each should, in his me-
thod of cure, follow the prescribed rules of
his art, than act at random.
M. — It is safer undoubtedly.
B. — But the precepts of the medical art
seemed not of one single kind.
M.— How ?
B. — Some we found calculated for pre-
serving, and others for restoring health.
M. — The division is just.
B. — How is it with the regal art ?
M. — It contains, I think, as many spe-
cies.
B. — The next point to be considered is,
what answer ought to be given to the fol-
lowing question — " Can you think that phy-
sicians are so thoroughly acquainted with all
diseases and their remedies that nothing far-
ther can be desired for their cure ?"
M. — By no means. For many new kinds
of diseases start up almost every age ; and
likewise new remedies for each are, almost
every year, either discovered by the indus-
try of men or imported from distant re-
gions.
B. — What do you think of the civil laws
of society ?
M. — They seem, in their nature, to be
similar, if not the same.
B. — The written precepts of their arts
then will not enable either physicians or
kings to prevent or to cure all the diseases
of individuals or of communities.
M. — I deem the thing impossible.
B. — Why, then, should we not investigate
as well the articles which can, as those which
cannot, come within the purview of laws ?
M. — Our labour will not be fruitless.
B. — The matters which it is impossible
to comprehend within laws seem to me
numerous and important ; and first of all
comes whatever admits of deliberation con-
cerning the future.
M. — That is certainly one head of ex-
ception.
B. — The next is a multitude of past
events ; such as those where truth is inves-
tigated by conjectures, or confirmed by wit-
nesses, or wrung from criminals by tortures.
M. — Nothing can be clearer.
B. — In elucidating these questions, then,
what will be the duty of a king ?
M. — Here I think that there is no great
occasion for long discussion, since, in what
regards provision for the future, kings are
so tar from arrogating supreme power, that
they readily invite to their assistance coun-
sel learned in the law.
B. — What do you think of matters which
are collected from conjectures, or cleared
2 L
250
DE JURE REGNI APUD SCOTOS I OR,
up by witnesses, such as are the crimes of
murder, of adultery, and impoisonment ?
M. — These points, after they have been
discussed by the ingenuity, and cleared up
by the address of lawyers, I see generally
left to the determination of judges.
B. — And, perhaps, with propriety ; for if
the king should take it into his head to hear
the causes of individuals, when will he have
leisure to think of war, of peace, and of those
important affairs which involve the safety
and existence of the community ? When, in
a word, will he have time to recruit nature
by doing nothing ?
M. — The cognisance of every question I
do not wish to see devolved upon the king
alone ; because, if it were devolved, he, a
single man, would never be equal to the task
of canvassing all the causes of all his sub-
jects. I therefore highly approve the advice
no less wise than necessary given to Moses,
by his father-in-law, " To divide among
numbers the burden of judicature ;" upon
which I forbear to enlarge, because the story
is universally known.
B. — But even these judges, I suppose, are
to administer justice according to the direc-
tions of the laws?
M. — They are, undoubtedly. But, from
what you have said, I see that there are
but few things for which the laws can, in
comparison of those for which they cannot,
provide.
B. — There is another additional difficulty
of no less magnitude, that all the cases, for
which laws may be enacted, cannot be com-
prised within any prescribed and determi-
nate form of words.
M. — How so ?
B. — The lawyers, who greatly magnify
their art, and would be thought the high-
priests of justice, allege, That the multitude
of cases is so great, that they may be deemed
almost infinite, and that every day there
arise in states new crimes, like new kinds of
ulcers. What is to be done here by the le-
gislator, who must adapt his laws to what is
present and past ?
M. — Not much, if he should not be some
divinity dropped from heaven.
B. — To these inconveniences add another,
and that not a small difficulty, that, from
the great mutability of human affairs, hard-
ly any art can furnish precepts that ought to
be universally permanent and invariably ap-
plicable.
M. — Nothing can be truer.
B. — The safest plan then seems to be, to
entrust a skilful physician with the health
of his patient, and a king with the preserva-
tion of his people : for the physician, by
venturing beyond the rules of his art, will
often cure the diseased, either with their
consent, or sometimes against their will ; and
the king will impose a new but still a salu-
tary law upon his subjects, by persuasion, or
even by compulsion.
M. — I can see no obstacle to prevent him.
B. — When both are engaged in these
acts, do they not seem each to exert a vigour
beyond his own law ?
M. — To me each appears to adhere to his
art. For it was one of our preliminary posi-
tions, that it is not precepts that constitute
art, but the mental powers employed by the
artist in treating the subject-matter of art.
At one thing, however, if you really speak
from your heart, I am in raptures — that,
compelled by a kind of injunction from
truth, you restored kings to the dignified
rank from which they had been violently de-
graded.
B. — Come not so hastily to a conclusion,
for you have not yet heard all. The empire
of law is attended with another inconve-
nience. For the law, like an obstinate and
unskilful task-master, thinks nothing right
but what itself commands ; while a king
may perhaps excuse weakness and temerity,
and find reason to pardon even detected
error. Law is deaf, unfeeling, and inexor-
able. A youth may allege the slippery
ground which he treads, as the cause of his
fall, and a woman the infirmity of her sex ;
one may plead poverty, a second drunken-
ness, and a third friendship. To all these
subterfuges what does the law say ? Go,
executioner, chain his hands, cover his head,
and hang him, when scourged, upon the ac-
cursed tree. Now, you cannot be ignorant
how dangerous it is, in the midst of so much
human frailty, to depend for safety on inno-
cence alone.
M. — What you mention is undoubtedly
pregnant with danger.
B. — I observe, that, on recollecting these
circumstances, certain persons are somewhat
alarmed.
M. — Somewhat, do you say !
B. — Hence, when I carefully revolve in
my own mind the preceding positions, I fear
that my comparison of a physician and a
king may, in this particular, appear to have
been improperly introduced.
THE RIGHTS OF THE CROWN IN SCOTLAND.
251
M. — In what particular ?
B. — In releasing both from ail bondage to
precepts, and in leaving them the power of
curing at their will.
M. — What do you find here most offen-
sive?
B. — When you have heard me, I shall
leave yourself to judge. For the inexpedi-
ence of exempting kings from the shackles
of laws we assigned two causes, love and
hatred, which, in judging, lead the minds of
men astray. In the case of a physician,
there is no reason to fear that he should act
amiss through love, as from restoring the
health of his patient he may even expect a
reward. And again, if a sick person should
suspect that his physician is solicited by
prayers, promises, and bribes, to aim at his
life, he will be at liberty to call in another ;
or, if another be not within his reach, he
will naturally have recourse for a remedy to
dumb books, rather than to a bribed mem-
ber of the faculty. As to our complaint con-
cerning the inflexible nature of laws, we
ought to consider whether it is not charge-
able with inconsistency.
M. — In what manner ?
B. — A king of superior excellence, such
as is visible rather to the mind than to the
eye, we thought proper to subject to no law.
M.— To none.
B. — For what reason ?
M. — Because, I suppose, he would, ac-
cording to the words of Paul, be a law to
himself and to others ; as his life would be a
just expression of what the law ordains.
B. — Your judgment is correct; and,
what may perhaps surprise you, some ages
before Paul, the same discovery had been
made by Aristotle, through the mere light
of nature. This remark I make solely for
the purpose of showing the more clearly that
the voice of God and of nature is the same.
But, that we may complete the plan which
has been sketched, will you tell me what
object the original founders of laws had prin-
cipally in view ?
M. — Equity, I presume, as was before
observed.
B. — What I now inquire is not what
end, but rather what pattern, they kept be-
fore their eyes.
M. — Though, perhaps, I understand your
meaning, yet I wish to hear it explained,
that, if I am right, you may corroborate
my opinion ; and, if not, that you may cor-
rect my error.
B. — You know, I apprehend, the nature
of the mind's power over the body.
M. — Some conception of it I can cer-
tainly form.
B. — You must also know, that of what-
ever is not thoughtlessly done by men they
have previously a certain picture in their
mind, and that it is far more perfect than
the works which even the greatest artists
fashion and express by that model.
M. — Of the truth of that observation I
have myself, both in speaking and writing,
frequently an experimental proof; for I am
sensible that my words are no less inade-
quate to my thoughts than my thoughts to
their objects. For neither can our mind,
when confined in this dark and turbid pri-
son of the body, clearly discern the subtile
essence of all things ; nor can we, by lan-
guage, convey to others our ideas, however
preconceived, so as not to be greatly in-
ferior to those formed by our own intel-
lects.
B. — What then shall we say was the ob-
ject of legislators in their institutions ?
M.— Your meaning, I think myself not
far from comprehending ; and, if I mistake
not, it is that they called to their aid the
picture of a perfect king; and by it ex-
pressed the figure, not of his person but of
his thoughts, and ordered that to be law
which he should deem good and equitable.
B. — Your conception of the matter is
just ; for that is the very sentiment which I
meant to communicate. Now, I wish that
you would consider what were the qualities
which we originally gave to our ideal king.
Did we not suppose him unmoved by love,
by hatred, by anger, by envy, and by the
other passions ?
M. — Such we certainly made his effigy,
or even believed him to have actually been
in the days of ancient virtue.
B. — But do not the laws seem to have
been, in some measure, framed according to
his image.
M. — Nothing is more likely.
B. — A good king then will be no less un-
feeling and inexorable than a good law.
M. — He will be equally relentless ; and
yet, though I neither can effect, nor ought
to desire, a change in either, I may still
wish, if it be possible, to render both a little
flexible.
B. — But in judicial proceedings God does
not desire us to pity even the poor, but com-
mands us to look solely to what is right and
252
DE JURE REGM A.FUD SCOTOS J OR,
equitable, and according to that rule alone
to pronounce sentence.
M. — I acknowledge the soundness of the
doctrine, and submit to the force of truth.
Since then we must not exempt the king
from a dependence on law, who is to be the
legislator that we are to give him as an in-
structor ?
B. — Whom do you think most fit for the
superintendence of this office ?
M. — If you ask my opinion, I answer, the
king himself. For in most other arts the
artists themselves deliver the precepts, which
serve as memorandums to aid their own re-
collection, and to remind others of then-
duty.
B. — I, on the contrary, can see no differ-
ence between leaving a king free and at
large, and granting liim the power of enact-
ing laws : as no man will spontaneously put
on shackles. Indeed, I know not whether
it is not better to leave him quite loose,
than to vex him with unavailing chains
which he may shake off at pleasure.
B. — But, since you trust the helm of
state to laws rather than to kings, take care,
I beseech you, that you do not subject the
person, whom you verbally term king, to a
tyrant
" With chains and jails his actions to control,
And thwart each liberal purpose of his soul ;"
and that you do not expose him, when
loaded with fetters, to the indignity of toil-
ing with slaves in the field, or with male-
factors in the house of correction.
B. — Forbear harsh words, I pray ; for I
subject him to no master, but desire that
the people, from whom he derived his power,
should have the liberty of prescribing its
bounds ; and I require that he should exer-
cise over the people only those rights which
he has received from their hands. Nor do
I wish, as you conceive, to impose these laws
upon him by force ; but declare it as my
opinion, that, after an interchange of coun-
sels with the king, the community should
make that a general statute which is con-
ducive to the general good.
M. — Would you then assign this province
to the people ?
B. — To the people, undoubtedly, if you
should not chance to alter my opinion.
M. — Nothing, in my conception, can be
more improper.
B. — For what reason ?
M. — You know the proverb, " the people
is a monster of many heads." You are
sensible, undoubtedly, of their great rash-
ness and great inconstancy.
B. — It was never my idea that this busi-
ness should be left to the sole decision of all
the people ; but that, nearly in conformity
to our practice, representatives selected
from all orders should assemble as council
to the king, and that, when they had pre-
viously discussed and passed a conditional
act, it should be ultimately referred to the
people for their sanction.
M. — Your plan I perfectly understand ;
but I think that you gain nothing by your
circumspective caution. You do not choose
to leave a king above the laws. And, for
what ? Because there are in human nature
two savage monsters, cupidity and irasci-
bility, that wage perpetual war with reason.
Laws, therefore, become an object of desire,
that they might check their licentiousness,
and reclaim their excessive extravagance to
a due respect for legal authority. What
purpose does it answer to assign him these
counsellors selected from the people ? Are
they not equally the victims of the same in-
testine war ? Do they not suffer as much
as kings from the same evils ? Therefore,
the more assessors you attach to a king,
the greater will be the number of fools ;
and what is to be expected from them is
obvious.
B. — What you imagine is totally differ-
ent from the result which I expect; and,
why I expect it, I will now unfold. First
of all, it is not absolutely true, as you sup-
pose, that there is no advantage in a multi-
tude of counsellors, though none of them,
perhaps, should be a man of eminent wis-
dom. For numbers of men not only see
farther, and with more discriminating eyes
than any one of them separately, but also
than any man that surpasses any single in-
dividual among them in understanding and
sagacity ; for individuals possess certain por-
tions of the virtues, which, being accumu-
lated into one mass, constitute one trans-
cendent virtue. In medical preparations,
and particularly in the antidote called mi-
thridatic, this truth is evident ; for though
most of its ingredients are separately nox-
ious, they afford, when mixed, a sovereign
remedy against poisons. After a similar
manner, slowness and hesitation prove in-
jurious in some men, as precipitate rashness
does in others ; but diffused among a multi-
tude, they yield a certain temperament, or
THE RIGHTS OF THE CROWN IN SCOTLAND.
253
that golden mean, for which we look in
every species of virtue.
M. — Well, since you press the matter,
let the people have the right of proposing
and of enacting laws, and let kings be in
some measure only keepers of the records.
Yet when these laws shall happen to be
contradictory, or to contain clauses indis-
tinctly or obscurely worded, is the king to
act no part, especially since, if you insist
upon the strict interpretation of them ac-
cording to the written letter, many absurdi-
ties must inevitably ensue ? And here, if I
produce as an example the hackneyed law
of the schools, " If a stranger mount the
wall, let him forfeit his head," what can be
more absurd than that a country's saviour,
the man who overturned the enemies on
their scaling-ladders, should himself be
dragged as a criminal to execution ?
M. — You approve then of the old saying,
" The extremity of law is the extremity of
injustice."
B. — I certainly do.
M. — If any question of this kind should
come into a court of justice, a necessity
arises for a merciful interpreter to mitigate
the severity of the law, and to prevent what
was intended for the general good from
proving ruinous to worthy and innocent
men.
B. — Your sentiments are just; and, if
you had been sufficiently attentive, you
would have perceived that in the whole of
this disquisition I have aimed at nothing
else but at preserving sacred and inviolate
Cicero's maxim — " Let the safety of the
people be the supreme law." Therefore, if
any case should occur in a court of justice of
such a complexion, that there can be no
question about what is good and equitable,
it will be part of the king's prospective
duty to see the law squared by the fors-
mentioned rule. But you seem to me, in
the name of kings, to demand more than
what the most imperious of them ever ar-
rogate. For you know that, when the law
seems to dictate one thing, and its author to
have meant another, such questions, as well
as controversies grounded upon ambiguous
or contradictory laws, are generally referred
to the judges. Hence arise the numerous
cases solemnly argued by grave counsellors
at the bar, and the minute precepts appli-
cable to them in the works of ingenuous
rhetoricians.
M. — I know what you assert to be fact
But I think that, in this point, no less injury
is done to the laws than to kings. For I
judge it better, by the immediate decision of
one good man, to end a suit, than to allow
ingenious, and sometimes knavish, casuists,
the power of obscuring, rather than of ex-
plaining the law. For, while the barristers
contend not only for the cause of their clients,
but also for the glory of ingenuity, discord
is in the meantime cherished, religion and
irreligion, right and wrong, are confounded ;
and what we deny to a king, we grant to
persons of inferior rank, less studious, in
general, of truth than of litigation.
B. — You have forgotten, I suspect, a
point which we just now ascertained.
M.— What may that be ?
B. — That to the perfect king, whom we
at first delineated, such unlimited power
ought to be granted, that he can have no
occasion for any laws ; but that, when this
honour is conferred on one of the multitude,
not greatly superior, and perhaps even infe-
rior to others, it is dangerous to leave him
at large and unfettered by laws.
M. — But what is all this to the interpre-
tation of the laws ?
B. — A great deal ; you would find, had
you not overlooked a material circumstance,
that now we restore in other words to the
king, what we had before denied him, the
undefined and immoderate power of acting
at pleasure, and of unhinging and derang-
ing every thing.
M. — If I am guilty of any such thing, it
is the guilt of inadvertence.
B. — I shall, therefore, endeavour to ex-
press my ideas more perspicuously, that
there be no misconception. When you grant
to the king the interpretation of the law,
you allow him the power of making the law
speak, not what the legislator intends, or
what is for the general good of the commu-
nity, but what is for the advantage of the
interpreter, and, for his own interest, of
squaring all proceedings by it, as by an un-
erring rule. Appius Claudius had, in his
decemvirate, enacted a very equitable law,
" That in a litigation concerning freedom,
the claim of freedom should be favoured."
What language could be clearer ? But the
very author of this law, by his interpreta-
tion, made it useless. You see, I presume,
how much you contribute, in one line, to the
licentiousness of your king, by enabling him
to make the law utter what he wishes, and
not utter what he does not wish. If this
254
DE JURE REGN1 APUD SCOTOS ; OR,
doctrine be once admitted, it will avail no-
thing to pass good laws to remind a good
king of his duty, and to confine a bad one
within due bounds. Nay, (for I will speak
my sentiments openly and without disguise,)
it would be better to have no laws at all,
than, under the cloak of law, to tolerate un-
restrained and even honourable robbery.
M. — Do you imagine that any king will
be so impudent as to pay no regard to his
reputation and character among the people,
or so forgetful of himself and of his family,
as to degenerate into the depravity of those
whom he overawes and coerces by igno-
miny, by prison, by confiscation of goods,
and by the heaviest punishments ?
B. — Let us not believe such events pos-
sible, if they are not already historical facts,
known by the unspeakable mischiefs which
they have occasioned to the whole world.
M. — Where, I beseech you, are these
facts to be traced ?
B. — Where ! do you ask ? As if all the
European nations had not only seen, but
also felt, the incalculable mischiefs done to
humanity by, I will not say, the immode-
rate power, but by the unbridled licentious-
ness of the Roman pontiff. From what
moderate, and apparently honourable, mo-
tives it first arose, with what little ground
for apprehension it furnished the improvi-
dent, none can be ignorant. The laws ori-
ginally proposed for our direction had not
only been derived from the inmost recesses
of nature, but also ordained by God, ex-
plained by his inspired prophets, confirmed
by the Son of God, himself also God, re-
commended in the writings, and expressed
in the lives, and sealed by the blood, of the
most approved and sanctified personages.
Nor was there, in the whole law, a chapter
more carefully penned, more clearly ex-
plained, or more strongly enforced, than
that which describes the duty of bishops.
Hence, as it is an impiety to add, to re-
trench, to repeal, or alter, a single article
in those laws, nothing remained for episco-
pal ingenuity but the interpretation. The
bishop of Rome having assumed this privi-
lege, not only oppressed the other churches,
but exercised the most enormous tyranny
that ever was seen in the world ; for having
the audacity to assume authority not only
over men, but even over angels, he absolutely
degraded Christ ; except it be not degrada-
tion, that in heaven, on earth and in hell,
the Pope's will should be law ; and that
Christ's will should be law only if the Pope
pleases. For, if the law should appear ra-
ther adverse to his interest, he might, by
his interpretation, mould it so as to compel
Christ to speak, not only through his mouth,
but also according to his mind. Hence,
when Christ spoke by the mouth of the
Roman pontiff, Pepin seized the crown of
Chilperic, and Ferdinand of Arragon de-
throned Joan of Navarre ; sons took up
impious arms against their father, and sub-
jects against their king ; and Christ being
himself poisoned, was obliged afterwards to
become a poisoner, that he might, by poison,
destroy Henry of Luxemburg.
M. — This is the first time that I ever
heard of these enormities. I wish, however,
to see what you have advanced concerning
the interpretation of laws a little more elu-
cidated.
B. — I will produce one single example,
from which you may conceive the whole
force and tendency of this general argu-
ment. " There is a law, that a bishop
should be the husband of one wife ;" and
what can be more plain or less perplexed?
But " this one wife the Pope interprets to
be one church," as if the law was ordained
for not repressing the lust, but the avarice
of bishops. This explanation, however,
though nothing at all to the purpose, bear-
ing on its face the specious appearance of
piety and decorum, might pass muster, had
ne not vitiated the whole by a second in-
terpretation. What then does this pontiff
contrive ? " The interpretation," says he,
" must vary with persons, causes, places, and
times." Such is the distinguished nobility
of some men, that no number of churches
can be sufficient for their pride. Some
churches, again, are so miserably poor, that
they cannot afford even to a monk, lately a
beggar, now a mitred prelate, an adequate
livelihood, if he would maintain the charac-
ter and dignity of a bishop. By this knav-
ish interpretation of the law there was de-
vised a form, by which those who were called
the bishops of single churches held others in
commendam, and enjoyed the spoils of all.
The day would fail me should I attempt to
enumerate the frauds which are daily con-
trived to evade this single ordinance. But,
though these practices are disgraceful to the
pontifical name and to the Christian charac-
ter, the tyranny of the popes did not stop
at this limit. For such is the nature of all
things, that, when they once begin to slide
THE RIGHTS OF THE CROWN IX SCOTLAND.
255
down the precipice, they never stop till they
reach the bottom. Do you wish to have
this point elucidated by a splendid example ?
Do you recollect, among the emperors of
Roman blood, any that was either more
cruel or more abandoned than Caius Cali-
gula?
M. — None that I can remember.
B. — Among his enormities which do you
think the most infamous action ? I do not
mean those actions which clerical casuists
class among reserved cases, but such as occur
in the rest of his life.
M. — I cannot recollect.
B. — What do you think of his conduct in
inviting his horse, called Incitatus, to sup-
per, of laying before him barley of gold, and
in naming him consul elect ?
M. — It was certainly the act of an aban-
doned wretch.
B. — What then is your opinion of his
conduct, when he chose him as his colleague
in the pontificate ?
M. — Are you serious in these stories ?
B. — Serious, undoubtedly ; and yet I do
not wonder that these facts seem to you fic-
titious. But our modern Boman Jupiter
has acted in such a manner as to justify
posterity in deeming these events no longer
incredibilities but realities. Here I speak
of the pontiff, Julius the third, who seems
to me to have entered into a contest for
superiority in infamy with that infamous
monster, Caius Caligula.
M. — What enormity of this kind did he
commit ?
B. — He chose for his colleague in the
priesthood his ape's keeper, a fellow more
detestable than that vile beast.
M. — There was, perhaps, another reason
for his choice.
B. — Another is assigned ; but I have se-
lected the least dishonourable. Therefore,
since not only so great a contempt for the
priesthood, but so total a forgetfulness of
human dignity, arose from the licentiousness
of interpreting the law, I hope that you will
no longer reckon that power inconsiderable.
M. — But the ancients do not seem to me
to have thought this office of interpretation
so very important as you wish to make it ap-
pear. The truth of this observation may be
collected from a single circumstance, that
the Roman emperors granted the privilege
to counsellors ; a fact which overturns the
whole of your verbose dissertation, and re-
futes not only what you asserted concerning
the magnitude of that power, but, in oppo-
sition to your earnest wish, clearly demons-
trates that the liberty of answering legal
questions, which they granted to others, was
not denied to themselves, if their inclination
prompted, or their occupation permitted its
exercise.
B. — The Roman emperors, whom the
soldiers placed at their head, without any
discrimination, or the least regard to the
public good, do not stand in the predica-
ment of the kings that we have been de-
scribing ; as they were generally chosen by
the most abandoned class of men for their
abandoned character, or forced their way to
the purple by open violence. Their con-
duct in granting to counsellors the power of
answering legal questions, I find not at all
reprehensible ; for, though it is of very great
importance, it is, with some degree of safety,
entrusted to men to whom it cannot be an
instrument of tyranny. Besides, as it was
entrusted to numbers, they were kept to
their duty by mutual reverence; since, if
any of them deviated from rectitude, he was
refuted by the answer of another. Nay, if a
knot of counsellors entered into a knavish
conspiracy, recourse might be had for re-
lief to the judge, who was not under the ne-
cessity of holding their answers law. Re-
course might also be had to the emperor,
who had the power of inflicting punishment
on every violator of the laws. Since these
men were thus bound by so many chains,
and more in dread of penalties for malver-
sation than in expectation of rewards for
fraud, you see, I apprehend, that the dan-
ger from them could not be very formid-
able.
M. — Have you any further remarks to
make about your king ?
B. — First of all, if you please, let us col-
lect in a few words what has been said ; for
thus we shall most easily discover whether
we have been guilty of any omission.
M. — Your plan has my approbation.
B. — We seemed to be pretty well agreed
about the origin and cause of creating kings,
and of establishing laws, but to differ a lit-
tle about the author of the law. Compelled,
however, at last by the evidence of truth,
you appeared, though with some reluctance,
to yield your assent.
M. — Though, as an advocate, I made the
most strenuous exertions, you certainly wrest-
ed from the king not only the power of or-
daining, but even of interpreting the laws ;
256
DE JURE REGNI APUD SCOTOS ; OR,
and here I fear that, if the matter should
become public, I may be charged with pre-
varication ; since I allowed a cause, which,
at the outset, I thought so good, to be so
easily wrested out of my hands.
B. — Be not alarmed ; for, if any one
should, in this case, charge you with preva-
rication, I promise you my counsel gratis.
M. — Of that promise, perhaps, we shall
soon have a trial.
B. — We discovered also many sorts of
business, that seemed incapable of being in-
cluded in any laws ; and of these we refer-
red, with the king's consent, part to the or-
dinary judges, and part to his council.
M. — That we did so, I recollect. And,
in the interim, what do you think came into
my head ?
B. — How can I, unless you tell me ?
M. — I thought you carved out kings in
some degree similar to those figures of stone
that seem generally to lean upon the heads
of columns, as if they supported the whole
structure, while, in reality, they bear no
more of the weight than any other stone.
B. — What an excellent advocate for kings !
You complain that I impose upon them too
light a burden, while their sole business,
night and day, is hardly any thing else but
to discover associates, with whom they may
either divide the burden of government, or
upon whom they may lay its whole weight !
And yet you seem, at the same time, to be
enraged that I administer some relief to
their distress.
M. — These auxiliaries I also embrace with
cordiality ; but wish them, as servants, not
as masters ; as guides to point out the way,
not to lead where they please, or rather to
drag and impel a king as a machine, and
leave him nothing else but the mere power
of giving his assent. I have, therefore, been
for some time in expectation of seeing you,
after closing your discourse upon royalty,
make a digression to tyranny or to any other
subject. For so narrow are the limits to
which you have confined your king, that, I
fear, if we should dwell longer upon that to-
pic, you will, in addition to the loss of his
high estate and sovereign power, banish him
to some desert island, where, shorn of all
his honours, he may drag a comfortless old
ao-e in penury and wretchedness.
°B. — You dread, as you allege, the charge
of prevarication. Now I, on the other hand,
fear that the king, whom you attempt to
defend, will be injured by your chicanery.
For, in the first place, why do you wish to
see him idle, if you would not encourage
idleness in architects ; and in the next, to
rob him of the good ministers and faithful
counsellors that I gave him, not as guar-
dians to superintend his conduct, but as as-
sociates to relieve him from part of his la-
bour ? By their removal you leave him sur-
rounded by a legion of knaves, who render
him a terror to his subjects ; and you do not
think his power sufficiently formidable, un-
less we leave him at liberty to do much
harm. I wish to see him beloved by his
subjects ; and guarded, not by terror, but
by affection ; the only armour that can ren-
der kings perfectly secure. And, if you do
not act with obstinacy, this is what, I trust,
I shall soon effect. For I shall bring him
out of what you call a narrow dungeon into
broad daylight, and, by one law, invest him
with such additional power and majesty,
that, if he should wish for more, you will
not hesitate yourself to charge him with ef-
frontery.
M. — That is a topic which I long to see
elucidated.
B. — That I may, therefore, satisfy your
eagerness with all possible speed, I shall
proceed directly to the essential point. One
of our late and uncontroverted deductions
was, that no law can be so clearly and ex-
plicitly worded as to leave no room for fraud
by a knavish interpretation. This matter
you will best understand by the production
of an example. It was provided by law,
that an illegitimate son should not succeed
his father in an ecclesiastical benefice. Even
in this affair, which one would imagine could
admit of no fraud, an evasion was found
practicable; for the father substituted an-
other in his son's place, and that other re-
signed the benefice to the bastard. When,
after this subterfuge, it was expressly pro-
vided, by an additional clause, that the bene-
fice which the father had at any time held
should never be held by the son, nothing
was gained even by this provision ; for, to
render it ineffectual, the priests agreed mu-
tually to substitute one another's sons. When
this practice also was forbidden, the law was
eluded by a fresh kind of fraud. There starts
up against the father a suppositious claimant,
who pretends a right to the benefice ; and,
while the father is engaged in a sham fight
with the suppositious sycophant, the son re-
quests the benefice, by petition, of the Roman
pontiff, if the right of neither litigant should
THE RIGHTS OF THE CROWN IN SCOTLAND.
257
be found valid. Thus both parties are, by
their voluntary and spontaneous cession,
worsted, and the son possesses the benefice
of the father by the father's prevarication.
In one law, then, you see what various kinds
of frauds are practised.
M.— I do.
B. — Do not legislators, in this case, ap-
pear to you to act entirely like the medical
practitioners, who, in attempting by the ap-
plication of plasters, to check the eruptions
of the scurvy, or of any other distemper,
force the repelled humours to burst out at
once through various channels, and, for one
head amputated to exhibit numbers sprout-
ing up like the hydra's?
M. — There cannot be a more apt com-
parison.
B. — As the physician of the body ought
at first to have expelled entirely all noxious
humours, ought not the physician of the
state to imitate him, and to exterminate
universally all corrupt morals ?
M.— That, though I think it difficult, I
hold to be the only genuine method of cure.
B.— And, if this object can be attained, I
think there will be occasion but for few laws.
M. — That is certainly matter of fact.
B. — Does it not appear likely to you, that
the person who can make a proper applica-
tion of this medicine, will contribute more to
the public good than all the assemblies of
all the orders collected for the enactment of
laws?
M. — Infinitely more, without doubt. But
let me ask, in the words of the comic poet,
"Where is the person mighty enough to
confer so great a favour ?"
B. — What do you think of entrusting the
king with this charge ?
M. — An admirable contrivance truly !
What was a pleasant and a smooth down-hill
path you have left the people in a mass to
tread ; but the laborious, rugged, and ar-
duous departments you make the sole pro-
vince of the king, as if it were not enough
to confine him chained within a close prison,
unless you also imposed upon him so heavy
a burden that he must sink.
B. — You mistake the case. I ask no-
thing of him that is unreasonable or difficult.
I do not insist, but request, that he would
listen to entreaty.
M. — To what do you allude ?
B. — To the natural behaviour of a good
father to his children, judging that a king
should, through his whole lite, behave in the
same manner to his subjects, whom he ought
to consider as his children.
M. — What is that remark to the present
purpose ?
B. — This is certainly the only, at least a
very powerful, antidote against the poison
of corrupt morals ; and, that you may not
think it a fiction of my brain, listen to
Claudian's advice to a king :
" Of citizen and father you should act the part,
The general interest wearing next your heart.
O'er one great body, you, as head, preside,
And from its good can ne'er your own divide.
To your own laws, if you should think them fit,
Others to bind, be foremost to submit.
To laws the people willing homage pay,
Whene'er their author can himself obey.
The king's example as a model serves,
As in a hive none from the sov'reign swerves.
An ear to edicts when no man will lend,
The prince's life the human mind can bend.
The vulgar herd, a changeful servile race,
Still ape their betters, even in clothes and face."
Do not imagine that a poet possessed of such
distinguished genuis and learning was mis-
taken in thinking that this circumstance had
so mighty an influence ; for the populace
is so much inclined to follow, and so eager
to imitate the manners of those who are
eminently conspicuous for probity and worth,
that they attempt in their conversation,
dress, and gait, to copy even some of their
imperfections. In their exertions, however,
to resemble kings in habit, manner, and
language, they are not actuated solely by
the love of imitation, but also by the hopes
of insinuating themselves into the favour of
the great, and of acquiring, by wheedling
arts, fortune, preferment, and power ; as
they know that man is by nature formed
not only for loving himself and his connex-
ions, but also for embracing, with cordiality,
in others, his own likeness, however imper-
fect and vicious. This homage, though not
demanded with pride and effrontery, but
courted as a precarious favour, has a far
greater effect than what the threats of the |
laws, the engines of punishment, and files
of musketeers can produce. This propen-
sity recals the people without violence to
moderation, procures to the king the affec-
tion of his subjects, gives permanence to
the tranquillity of the public, and solidity to
the property of individuals. Let a king,
therefore, constantly revolve in his own
mind, that, as he stands in a public theatre,
exhibited as a spectacle to every beholder,
all his words and actions must be noted and
subject to comments ; and that
2 m
258
DE JURE REGXI APUD SCOTOS ; OR,
" To regal vice no secrecy is known,
Expos'd aloft upon a splendid throne :
Whatever shape it takes, or new disguise,
All is explor'd by fame's quick prying eyes."
With what great caution, then, ought princes,
in both cases, to act; since neither their
virtues nor their vices can remain concealed,
nor come to light, without effecting num-
berless changes. If you should still doubt
j the great influence of the king's life upon
the public discipline, take a retrospective
view^ of infant Rome in its nascent state,
and in its first cradle. When this rude and
uncivilised people, composed (for I will use no
harsher terms) of shepherds and strangers,
ferocious itself by nature, with a most fero-
cious king at its head, had formed a kind of
camp, to disturb the peace, and to provoke
the arms of the surrounding nations, how
great must have been the hatred, how vio-
lent the alarm of its neighbours ! That very
people, having chosen for its head a pious
and upright king, was thought so suddenly
changed, that any violence offered to it, in
the service of the gods, and in the exercise
of justice, was reckoned almost impiety by
those very neighbours whose lands it had
ravaged, whose cities it had burnt, and
whose relations and children it had dragged
into slavery. Now, if in the midst of such
brutal manners and uncultivated times,
Numa Pompilius, a king lately fetched from
a hostile nation, could effect such a mighty
alteration, what may we expect, or rather,
what may we not expect, from those princes
who have been born and bred to the hopes
of royalty, and who receive an empire sup-
ported by relations, by dependents, and by-
ancient connexions ? How much ought their
minds to be inflamed with the love of vir-
tue, by considering that they may not only
hope for the praise of a single day, like
actors who have performed their part well,
but also presume that they secure the love
and admiration of their own age, and per-
petual renown, and honours nearly divine
among posterity. The picture of this ho-
nour, which I have conceived in my mind,
I wish I could express to you in words.
But that I may, in some measure, delineate
to you a faint sketch, figure to yourself the
brazen serpent erected by Moses in the de-
sert of Arabia, and curing solely by its pre-
sence the wounds inflicted by other serpents;
conceive some of the numerous host stung
by the serpents, and crowding to the infal-
lible remedy ; others looking astonished at
the novelty of the unprecedented miracle ;
and all with every species of praise celebrat-
ing the unbounded and incredible benefi-
cence of God in removing the pains of a
deadly wound, — not by medicines, with tor-
ture to the patient, with labour to the phy-
sician, and constant anxiety to friends, but
restoring the part to a sound state, not by
the slow operation of time, but in a single
moment. Now compare to this serpent a
king ; but so compare him, as to reckon a
good king among the greatest blessings of
God, since he alone, without expense, with-
out trouble to you, relieves all the distresses,
and quiets all the commotions of the realm,
and soon happily cures, by conciliatory ad-
dress, even ancient animosities, and proves
salutary, not only to those who behold him
personally, but also to those who are so far
distant as not to have the least hope of ever
seeing him ; and has, by his very effigy,
when presented to the mind, such power as
easily to effect what neither the learning of
lawyers, nor the knowledge of philosophers,
nor the experience of so many ages em-
ployed in the formation of the arts, was
ever able to attain. In fact, what honour,
what dignity, what greatness or majesty can
be expressed or conceived superior to that
of the man, who, by his language, his con-
versation, his look, his name, and even by
the presence of his image in the mind, can
bring back dissolute profligates to moderate
expenses, violent oppressors to equitable
practices, and furious madmen to their so-
ber senses ? This, if I mistake not, is the
true picture of a king, not indeed of a king
hedged round with arms, always in fear, or
causing fear, and, from his hatred of the
people, measuring their hatred to himself.
This portrait, which I have just exhibited,
has been expressed in the most beautiful
colours by Seneca, in his Thyestes ; and, as
it is a very elegant piece of poetry, it must
undoubtedly occur to your recollection.
Now do you think that I still entertain
mean and contemptible notions of a king,
and that, as you lately said, I thrust him,
with a load of fetters, into a legal dungeon ?
Have I not rather brought him forwai-d
into day-light, into the communities of men,
and into the public theatre of the human
race, thronged, indeed, not by a haughty
circle of spearmen and swordsmen, and silk-
clad profligates, but guarded by his own in-
nocence, and protected, not by the terror
of arms, but by the love of the people ; and
THE RIGHTS OF THE CROWN IX SCOTLAND.
259
not only free and erect, but honoured, vene-
rable, sacred, and august, hailed by every
species of good omens and felicitating ac-
clamations, and attracting in his whole pro-
gress the looks, the eyes, and souls of all
spectators ? What ovation, what triumph,
can be compared to such a daily procession ?
Were a God in human shape to drop down
upon earth, what greater honour could be
shown him than what would be paid to a
genuine king, that is, to the living image
of God ? A greater honour than this neither
love could bestow, nor fear extort, nor flat-
tery invent. What think you of this picture
of a king ?
M. — It is truly splendid, and so magni-
ficent, that it seems impossible to conceive
anything more noble. But during the cor-
rupt morals of our times, it is difficult to
conceive the existence of such magnanimity,
unless a happy liberality of mind and natu-
ral goodness of disposition be aided by the
diligence of education. For the mind, if
once formed by good instructions and arts,
will, when confirmed by age and experi-
ence, pursue true glory through the paths
of virtue, be in vain tempted by the allure-
ments of pleasure, and remain unshaken by
the assaults of adverse fortune. For so
much
" To native power does discipline impart,
And proper culture steel the human heart,"
that in the very avocations of pleasure, it
meets with opportunities for the exercise
of virtue, and considers the difficulties,
which usually terrify weak minds, as casual
materials for the acquisition of just renown.
Hence, as a liberal education is in every
point of view so momentous, what prospec-
tive care and anxious precaution ought to
be used, that the tender minds of kings may
be properly seasoned from theirjvery cradle !
For, as the blessings conferred by good
kings on their subjects are so numerous, and
the calamities originating with bad princes
are, on the other hand, equally numerous,
nothing appears to me to have, in every re-
spect, a greater weight than the moral cha-
racters and political dispositions of kings
themselves, and of those who enjoy with
them a share of the supreme power. For
the good or bad conduct of individuals gene-
rally escapes the notice of the multitude, or
the obscurity of its author allows the exam-
ple to reach but a few ; but all the words
and deeds of those who direct the helm of
state being written, as Horace says, in a
kind of votive tablet, cannot remain con-
cealed, but lie open to general imitation.
Nor is it merely by a fondness for pleasing,
but by the inviting blandishments of inte-
rest, that ministers attach the minds of
courtiers, and make the public discipline
veer with the veering inclinations of kings.
I fear, however, that we shall not be able
to prevail upon our princes to discharge
those functions, of which you have just given
a detail. For they are so corrupted by the
allurements of pleasure, and so much de-
ceived by a false idea of honour, that I think
them likely to experience nearly the same
misfortune which, as we are told by some
poets, befel the Trojans in their voyage
under Paris. Having left the real Helen
in Egypt with Proteus, a man of uncom-
mon sanctity, and indeed of a godlike cha-
racter, they sought, during ten years, for
her image with such obstinacy, that the
same moment proved the end of the most
destructive of wars, and of the most opulent
kingdom then in existence. This false idol
of royalty, when once possessed by right or
by wrong, impotent tyrants embrace with
fondness, and can neither retain without a
crime, nor relinquish without ruin. If any
man were to hint that the true Helen, for
whom they believe themselves contending,
is concealed in some remote anc
region, they would declare him insane.
B. — It is with much pleasure I find, that
if you have not really seen the daughter of
Jove, you have, from my description, at least
formed some idea of her beauty. For, if
those who, to their own great detriment,
are in love with the representation of the
imaginary Helen, were to see a perfect like-
ness of the real one, painted by some Proto-
genes or Apelles, I doubt not but they would
feel for it the greatest admiration, and the
most violent passion ; and that, if they did
not immediately bid adieu to the other, they
would justly incur the cruel punishment de-
nounced against tyrants in the imprecation
of the satirist Persius —
" Great Father of the gods, when, for our crimes,
Thou send'st some heavy judgment on the times,
Some barbarous king, the terror of the age,
The type and true vicegerent of thy rage,
Thus punish him ; — set virtue in his sight,
Grac'd with each charm that can the eye invite :
But set her distant, that he thus may see
His gains outweigh'd by lost felicity."
And, since tyrants have been incidentally
260
DE JURE REGNI APUD SCOTOS : OR,
mentioned, what do you think of proceeding
directly to the consideration of them ?
M. — I have no objection, if you think
that no other subject claims a preference.
B. — In my opinion we shall not be in the
least danger of going astray, if, in the inves-
tigation of a tyrant, we follow the steps
which we trod in our search after a king.
M. — That is likewise my opinion. For
we shall most easily comprehend their dif-
ference, if we survey them contrasted.
B. — And first, if we begin with the name
tyrant, we shall find it uncertain to what
language it belongs. Accordingly, to in-
quire whether its etymology be Greek or
Latin will be superfluous. But what the
ancients called tyranny can, I think, be no
mystery to any person who is a little familiar
with polite literature. For both the Greeks
and Latins called those tyrants whose power
was in every respect unlimited, restrained
by no legal ties, and subject to the cog-
nizance of no judicature. And therefore,
in both languages, as you well know, not
only heroes and the most excellent men, but
also the greatest of the gods, and even Ju-
piter himself, are styled tyrants, and that
by those who both thought and spoke of
the gods with the greatest reverence and
honour.
M. — Of that I am by no means ignorant ;
and, therefore, I am the more surprised that
the name should be, fur so many ages, held
odious and even highly reproachful.
B. — This term has certainly met with the
fate of most others ; for words, if duly con-
sidered, will be found in their own nature
totally innocent. Though they strike the
ear, some with a smooth, some with a harsh
sound, yet they have no intrinsic power of
exciting in the mind anger, hatred, or mirth,
or in any way of creating pleasure or pain.
If ever we experience any such thing, it
generally proceeds, not from the word, but
from human custom, and from the idea con-
ceived in the mind. Hence, a word, that to
some is a mark of respect, cannot be uttered
before others without a prefatory apology.
M. — I recollect that something of a simi-
lar nature has happened in the case of Nero
and Judas ; for the former of these names
among the Romans, and the latter among
the Jews, was reckoned by the highest fa-
milies eminently splendid and honourable.
Afterwards, however, through no defect in
the names, but from the fault of two indivi-
duals, it happened that the most abandoned
would not give them to their children ; into
so much obscurity had they fallen through
infamy.
B.— That tyrant stands in the same pre-
dicament is evident. For, that the first
magistrates who received that name were
good men, is probable from this circumstance
that the name was for some time so honour-
able, that men applied it even to the gods.
Their successors, by their crimes, rendered
it so detestable, that all shunned it as con-
tagious and pestilential, and deemed it a j
lighter reproach to be called hangman than !
tyrant.
M. — Here the same thing happened as to
the kings at Rome after the expulsion of the
Tarquins, and to the name of dictator after
the consulship of Antony and Dolabella.
B. — You perfectly comprehend the mat-
ter. On the other hand, again, humble and
plebeian names became, through the merit
of the persons to whom they belonged, illus-
trious, as among the Romans, Camillus, Me-
tellus, Scropha ; and. among the Germans,
Henry, Geneserick, and Charles. This ob-
servation you will the more easily under-
stand, if you consider that, after the name
of tyrant became extinct, the substance of
the thing remained, and this species of ma-
gistracy still retained its pristine dignity
among a variety of illustrious nations, as the
iEsymnetse among the Greeks and dictators
among the Romans. For both were legal
tyrants ; tyrants indeed, because they were
superior to the laws, — and legal, because
elected by the consent of the people.
M. — What do I hear ! that there are
even legal tyrants ? From you, at least, I
expected to have heard a quite different
doctrine. For now you seem to confound
every distinction between kings and tyrants.
B. — Among the ancients, kings and ty-
rants seem undoubtedly to have conveyed
the same idea, but, I conceive, at different
periods of time. For the name of tyrants
was, I presume, the more ancient; and,
when nations became tired of them, kings
succeeded in their place under a more sooth-
ing title, and with a milder sway. "When
these also degenerated, men had recourse to
the moderating power of laws, that might
limit the extent of their authority, and set
bounds to their boundless desires. But, as
the variations of times and manners required
new remedies, and old governments became
odious, new forms were invented. The sub-
jects, however, which we have at present
THE RIGHTS 01? THE CROWN IN SCOTLAND.
261
undertaken to discuss, are the two species of
government ; that in which the power of the
laws is superior to the king's, and, what is
the worst species of tyranny, that in which
everything is diametrically opposite to roy-
alty ; and to compare them one with the
other.
M. — It is so ; and I long much to hear
you upon that topic.
B. — The first point, then, which we ascer-
tained was, that kings were created for the
maintenance of civil society ; and we estab-
lished it as an axiom, that it was their duty
to administer justice to every man according
to the directions of the law.
M. — I recollect it.
B. — First, then, by what name shall he,
who does not receive that office by the
people's voluntary consent, but seizes it by
violence, or intercepts it by fraud, be qua-
lified ?
M. — By that of tyrant, I conceive.
B. — There are, besides, many other dis-
tinctions, which, as they may be easily col-
lected from Aristotle, I shall lightly skim.
Regal government is conformable, and ty-
ranny contrary, to nature; a king rules
over a willing, a tyrant over a reluctant
people ; royalty is a freeman's authority over
freemen — tyranny a master's over his slaves ;
citizens act as sentinels to a king, for the
security of his person ; foreigners to a tyrant
for the oppression of the citizens. For the
one exercises his power for the benefit of
the people, and the other for his own.
M. — What, then, shall we say of those
who, by violence and without the people's
consent, obtained supreme power, and go-
verned their respective states for many years
in such a manner as to leave the public no
reason to be dissatisfied with their adminis-
tration ? For, except a legal election, how
little was there wanted in Hiero of Syra-
cuse, and in the Medicean Cosmo of Flo-
rence, to constitute a just and accomplished
king?
B. — These we can by no means help in-
serting in the catalogue of tyrants. For, as
an excellent historian has finely remarked,
" By force to rule your country or parents,
though you should have the power, and
should rectify their errors, is still offensive
and vexatious." In the next place, such
men seem to me to act like robbers, who,
by artfully dividing their ill-gotten booty,
expect from iniquity the reputation of jus-
tice, and from rapine the praise of libera-
lity, and yet never attain the object of their
desire. For, by the hatred arising from one
misdeed, they lose all gratitude for their
ostentatious beneficence, and gain the less
credit for moderation among their fellow-
citizens, that their view is not the public
good, but their own private power, that they
may the more securely enjoy their pleasures,
and, by mollifying a little the general hatred,
transmit their authority the more easily to
their descendants. When this has been
once effected, they resume their natural
character; for what fruit is likely to be
collected in harvest may be easily conceived
from the seed that has been sown in spring.
For to make everything bend to your own
nod, and to centre in your own person the
whole force of the laws, has the same effect
as if you should abrogate all the laws. But
this kind of tyrants ought, perhaps, to be
tolerated, if they cannot be removed without
general ruin ; as we choose to submit to cer-
tain bodily distempers rather than to expose
our life to the hazardous experiment of a
doubtful cure. But those who openly exer-
cise their power, not for their country, but
for themselves, and pay no regard to the
public interest, but to their own gratifica-
tion ; who reckon the weakness of their fel-
low-citizens the establishment of their own
authority, and who imagine royalty to be,
not a charge entrusted to them by God, but
a prey offered to their rapacity, are not con-
nected with us by any civil or human tie,
but ought to be put under an interdict, as
open enemies to God and man. For all the
actions of kings ought to keep in view, not
their own private emolument, but the gene-
ral safety of the state ; and the more they
are exalted above the most eminent citizens,
the more they ought to imitate those celes-
tial bodies that, without any act of concilia-
tion on our side, pour upon mankind the
vital and beneficent streams of their lioht
and heat. Even the very titles with which
we decorated kings (and perhaps they are
within your recollection,) might remind
them of this munificence.
M. — I think I recollect that, towards
their subjects, they were to practise the in-
dulgence of fathers to their children, to use
the diligence of shepherds in promoting
their interest, to behave as generals for the
security of their persons, as chief-justices in
displaying a pre-eminence of virtue, and as
emperors in issuing salutary edicts.
B. — Can he, then, be called a father, who
262
DE JURE REGXI APUD SCOTOS ; OR,
treats his subjects as slaves ? or he a shep-
herd, who does not feed but slay his flock ?
or he a pilot, whose constant study it is to
throw the goods overboard ; and who, accord-
ing to the nautical adage, scuttles the vessel
in which he sails ?
M. — By no means.
B. — What do you think of the king who
governs, not for the benefit of the people,
but for the gratification of his own appetites
and passions, and is manifestly engaged in
an insidious conspiracy against his subjects ?
M. — I shall certainly deem him neither
a general, an emperor, nor a supreme judge.
B. — Should you, then, observe a man
usurping the name of king who excels none
of the multitude in any species of virtue,
and is even inferior to many, who discovers
no paternal affection for his subjects, but
crushes them under his proud sway; who
considers them as a flock entrusted to him,
not for their preservation but for his own
emolument ; will you reckon him truly a
king, though he should stalk along, crowded
by a numerous train of guards, and make an
ostentatious display of a magnificent dress,
and dazzle the eye by exhibiting the sword
I of the law, and conciliate the favour and
applause of the vulgar by prizes, games,
processions, mad piles of buildings, and other
popular signs of grandeur ? Will you, I say,
deem him a king ?
M. — Not at all, if I mean to be con-
sistent; I must consider him as an outcast
from human society.
B. — By what bounds do you circumscribe
this human society ?
M. — By the very same to which you
seemed to me, in your preceding disserta-
tion, to wish it confined to the fences of
law; for I see that robbers, thieves, and
adulterers, who transgress them, are pun-
ished by the public, and that their trans-
gression of the limits prescribed by human
society is thought a just cause for their pun-
ishment.
B. — What will you say of those who
never would come within the pale of human
society ?
M. — I should consider them as enemies
to God and man, and entitled to the treat-
ment, not of men, but of wolves and other
noxious animals, which, if bred by any
person, are bred to the destruction of him-
self and of others, and, if killed, are killed
to the advantage, not only of the individual,
but of the public. Nay, were I empowered
to enact a law, I would adopt the Roman
method of treating monsters, and order such
a race of men to be exposed on some deso-
late island, or to be sunk in the deep at a
distance from the sight of land, lest they
should, even when dead, injure the living
by their contagion ; and publish a decree,
that whoever despatched them should be
rewarded, not only by the whole people,
but by private persons, as is generally done
to those who have killed wolves or bears, or
seized their cubs. For, if any such monster
were to arise, and to utter human accents,
and to have the appearance of a man's face,
and his likeness in every other part, I could
never think myself connected with him by
any social tie. Or, if any one, divesting
himself of humanity, should degenerate into
savage barbarity, and refuse to unite with
other men, but for men's destruction, I do
not think him entitled to the appellation of
man any more than satyrs, apes, or bears,
though in his look, gesture, and language,
he should counterfeit man.
B. — Now you comprehend, if I mistake
not, what notion the wisest of the ancients
entertained of a king's, as well as of a ty-
rant's, character. Is it your pleasure then,
that the rule adopted by us, in forming an
idea of a king, should be followed in exhibit-
ing the portrait of a tyrant ?
M. — Certainly ; and, if it is not too trou-
blesome, I am eager to hear you proceed.
B. — You have not forgotten, I imagine,
what is said by the poets of the furies, and
by the populace of devils, that they are spi-
rits hostile to the human race, and, in the
midst of their own eternal torments, de-
lighting in the torture of men. This is
certainly a true picture of tyranny. But,
since this picture is discernible only to the
mind, and without sensation, I shall offer
you another, which will impress not only
your mind, but your senses, and rush upon
your eyes almost palpably visible. Imagine
yourself viewing a ship at sea, tossed by
storms, and all the shores around not only
destitute of harbours, but full of inveterate
enemies. Imagine also the master of that
ship engaged in a mutual contest of hatred
with the passengers, and yet having no hopes
of safety but in the fidelity of the sailors,
and even those not certain, as he cannot be
ignorant that his life is in the hands of a
barbarous class of men, strangers to all
humanity, retained in their duty solely by
proffers of money, and easily tempted to his
THE RIGHTS OF THE CROWN IN SCOTLAND.
263
destruction by the prospect of greater hire.
Such, positively, is the life embraced by
tyrants as a state of beatitude. Abroad
they dread open enemies, at home their
subjects ; and not only their subjects, but
their domestics, their relations, their bro-
thers, their wives, their children, and their
parents. Accordingly, they always either
wage or dread an external war with foreign-
ers, a civil war with their subjects, or a do-
mestic war with their relations, and never
expect any assistance but from hirelings, and
dare not hire the good nor trust the bad.
What enjoyment then can life be to such
men ? Dionysius, dreading the application
of a razor to his throat, would not permit
his daughters, ladies of adult age, to supply
the place of a barber. His brother was
murdered by Timoleon, the Phersean Alex-
ander by his wife, and Spurius Cassius by
his father. What racks must the man, who
has these examples constantly before his
eyes, carry in his breast, when he considers
himself erected as a mark at which all man-
kind are to shoot their arrows ? when he is
tormented by the stings of conscience, not
only when awake, but is roused even in his
sleep by the terrific images of the living and
the dead, and pursued by the furies shaking
their torches ? For the time assigned by
nature to all animals for repose, and to men
as a relief from cares, becomes to him all
horror and despair ?
M. — These topics you have unfolded with
no inconsiderable art, and, perhaps, with
equal truth ; but, if I am not mistaken, with
little subserviency to our plan. For na-
tions, who have the power of electing kings,
have also the power of binding them, when
elected, by laws. But you know that ours
are not kings by election but by birth ; and
I have always been of opinion that the
crown was not more an hereditary right
than the power of making their will the
law. Nor have I lightly adopted this opi-
nion, but deliberately, and under the sanc-
tion of great statesmen, with whom, if I
have erred, I need not be ashamed of my
error. For, without mentioning others, the
lawyers affirm that, by the imperial law en-
acted concerning their authority, the whole
power of the people was transferred to them,
so that their pleasure should stand as law.
Hence arose a certain emperor's threats,
that he would, by one edict, wrest from all
the lawyers, all the power in which they so
much gloried.
B. — While you were quoting the very
worst authority in so important a case,
you acted with prudence in suppressing all
names, as it would be the name of Caius
Caligula, who, for the gratification of his
savage cruelty, wished that the Roman peo-
ple had but one neck, and possessed nothing
that belongs, I will not say to a king, but to
a man, but the form. You cannot, there-
fore, be ignorant what little credit is due
to his words. As to the imperial law,
lawyers themselves can neither explain its
nature, nor ascertain when, by whom, or in
what words, it was passed. For the Roman
kings never professed that power, as an ap-
peal lay from them to the people. The act
by which Lucius Flaccus, after the extinc-
tion of Roman liberty, established, through
the silence of the other laws, the tyranny of
Lucius Sylla, no man ever recognised as a
law ; for the purport of that act was, that
whatever Lucius Sylla did, should be valid
in law. Of such a power over itself, no
free people was ever so mad as to make a
voluntary grant ; or, if there was, it cer-
tainly deserved to live in perpetual slavery
to tyrants, and to suffer the punishment
due to its folly. However, if any such law
really existed, we ought to consider it as an
example for caution, not for imitation.
M. — Your admonition, though well found-
ed, is applicable only to those who have the
power of creating kings of specific qualities ;
but not at all to us, who, by our suffrages,
do not elect the best, but accept the gift of
chance. This remark, made by our lawyers,
peculiarly affects us, who bestowed upon the
ancestors of our kings such a right to bind
us and our posterity, that they and their de-
scendants hold perpetual sovereignty over
us. I wish, therefore, that this advice had
been suggested to them, I mean to our an-
cestors, as they were entirely at liberty to
adopt what kings they pleased. Your coun-
sel coming now too late, has certainly no
other tendency, but to make us deplore the
folly of our ancestors, and feel the misery of
our condition. For, sold into bondage as
we are, what remains for us but to suffer
punishment for the folly of others, and to
alleviate its weight by the meekness of our
patience ; and not to exasperate, by unsea-
sonable murmurs, the rage of those whose
yoke we cannot shake off, whose power we
cannot diminish, and whose violence and ty-
ranny we cannot escape ? The imperial law,
however, to which you are such a deter-
264
DE JURE REGNI APUD SCOTOS ; OR,
mined foe, was not, as you wish to insinuate,
invented in favour of tyrants; for it was
sanctioned by the justest of princes, by Jus-
tinian, with whom such open flattery could
never have prevailed ; for Horace's maxim
is applicable even to a foolish prince :
" Whom does false honour please, or lying fame
affright ?
None but the wretches who in vice and lies delight."
B. — However cruelly ungrateful to Beli-
farius some historians paint Justinian, he is
certainly allowed to have been, in general,
a great prince. Let him, therefore, be such
as you wish him to appear ; you ought still
to recollect, that most of his contemporaries
have characterised Scribonian, the principal
compiler of the laws in question, as a most
abandoned man, who might have easily been
induced to go any lengths for the gratifica-
ion of the worst of sovereigns. For,
" All wish the dire prerogative to kill ;
Even they would have the pow'rwho want the will,"
And,
" Nothing so monstrous can be said or feigned,
But with belief and joy is entertained,
When to his face the worthless wretch is praised,
Whom venal courtiers to a god have raised."
But let us return to our own princes, to
whom you say that the crown belongs by in-
heritance, not by suffrage. Now I here
speak only of our own ; for, were I to make
a digression to foreign princes, I fear that
the discussion would embrace too wide a
field.
M. — That is, in my opinion, the best
mode of proceeding ; as foreign transactions
are not very intimately connected with the
present subject.
B. — If then we trace the history of our
nation from its first origin, it will be found
a settled point, that the princes invested
with sovereign power owed their election to
the opinion generally entertained of their
merit.
M. — Such is the account contained in our
historical records.
B. — Nor is it a less settled point, that
many princes, who made a cruel or flagi-
tious use of their office, were called to an ac-
count by their subjects ; that some were, in
certain cases, banished, and in others exe-
cuted ; and that though either their sons or
relations were chosen in their place, yet no
inquiry was ever instituted against the au-
thors of their punishment ; but that violence
offered to good kings has, in no part of the
world, been punished with more exemplary
severity. And, since it would be tedious to
enumerate individuals, a few only of a late
date, and still fresh in the nation's memory,
shall be here mentioned. The murder of
James I., who left behind him a male heir,
six years of age, was so inexorably revenged
by the nobility, that persons sprung from
the most illustrious families, and of the first
distinction for riches and connexions, were
destroyed by a new and exquisite kind of
punishment. But, on the other hand, who
lamented, for I will not say revenged, the
death of James III., a man noted for flagi-
tiousness and cruelty ? On the death, how-
ever, of his son, James IV., even the sus-
picion of murder could not escape the
severest destiny. Nor did our ancestors
discover a pious affection only to good
kings, but also treated bad princes with
lenity and mercy. For Cullen being, as he
was coming to plead his cause, murdered on
the road by an enemy, was revenged in an
extraordinary manner by a decree of the
states ; and Ewen, who had been condemned
to perpetual imprisonment, having been si-
milarly killed in confinement by an enemy,
was similarly revenged; and the violent
death of the man, whose nefarious life all
detested, was punished as parricide.
M. — The present subject of our inquiry
is, not so much what has been sometimes
done, as what are the legal rights of our
sovereigns.
B. — Returning then to that question, and
considering the state of our kings down to
Kenneth III., who first established his race
permanently upon the throne, we shall find
it a clear case, that as the people, till that
period, exercised the right of creating and
correcting their kings, he must have pro-
cured this right to his family either by force
or by persuasion.
M. — The inference is undeniably just.
B.— Besides, if he extorted obedience
from the people by force, the people, upon
the first prospect of superiority in the con-
test, may shake off so grievous a yoke ;
since the received laws and the imperative
voice of nature proclaim, both to kings and
to nations, that every system upheld by
violence may, by the like violence, be over-
turned.
M. — But what will follow, if the people,
either circumvented by fraud, or compelled
by fear, should submit to slavery ? What
THE LAW AND THE PKIXCE.
265
reason can be alleged why they should not
for ever adhere to a convention once solemnly
ratified ?
B. — If you talk to me of a convention,
what reason is there that I should not, in
opposition, produce those causes which may
effect the dissolution of compacts and con-
ventions ? And first, with regard to agree-
ments founded on violence and fear, their
is in all communities an established law, de-
rived from the pure fountains of nature.
Even to such as have been overreached by
fraud, the laws grant an entire restitution to
their former state, and order this rule to be
scrupulously observed in the case of minors,
and other persons, whose interest they wish
particularly to consult. Who then can have
a juster claim to restitution than the whole
body of the people, since an injury offered
to it affects not only a single part of the
community, but is widely diffused through
all the members of the body politic.
M. — I know that in the causes of private
persons this law is adopted, and that it is in
no case iniquitous. But upon this topic we
need not enter into any violent contest ;
since, as we are informed by our historians,
it is extremely probable that the right in
question was bestowed upon our kings by
the people's consent.
B. — It is likewise probable, that so impor-
tant a right was not granted without some
important cause.
M. — That position I readily admit,
B. — What then, do you think, was the
principal cause ?
M. — What other causes can I assign but
those recorded in history? The people's
impatience, under the pressure of ambition,
of anarchy, of murder, and of intestine war,
frequently terminating in the utter ruin of
one of the parties, and always with infinite
mischief to both. For those who obtained
the sovereign power, endeavoured to leave
their children in undisturbed possession, by
the total extinction of their brothers and
nearest relations; a species of policy, which,
we hear, is adopted among the Turks, and
which, we see, is practised by the chieftains
in our own isles, as well as in Ireland.
B, — To which of the two, then, do you
think the contest proved more dangerous,
to the people or to the princes ?
M. — To the princes indisputably ; for the
people, though ultimately doomed to be-
come the prey of the victors, may, during
the contest, live in perfect security.
B. — Princes then, it seems, have wished,
rather on their own account than for the
public benefit, to make the crown perma-
nent and hereditary in their family.
M. — The supposition appears probable.
B. — Now, in order to gain a point so
essential to the lasting honour, to the wealth
and security of their family, it is reasonable
to suppose that, in return, they relinquished
some part of their right, and that to retain
the good-will and affection of the people,
and to procure their consent, they granted,
on their side, some equivalent boon.
M. — I believe so.
B. — You will certainly allow it to be an
incredible supposition, that, in return for so
important a concession to their kings, they
should suffer their condition to be altered
for the worse ?
M. — Absolutely incredible.
B. — Nor would kings, had they known
this to be an injurious institution, disadvan-
tageous both to their children and to the
people, have solicited its adoption with such
ambitious zeal.
M. — By no means.
B. — Suppose then any individual, in the
mixed throng of a free people, freely to ask
the king, " What is to be done, if any of
our kings should have a son that is an idiot ;
or, what is worse still, a son that is insane ?
Will you grant the power of regulating our
conduct, to a man who cannot regulate his
own?"
M. — There was no occasion, I think, for
suggesting this exception, since, whenever
this class of men occurs, there is sufficient
provision made by the laws.
B, — An honest, as well as sound opinion.
Let us, therefore, inquire, whether, if kings
had obtained from the people unlimited
power over the laws, it would not have been
injurious, especially to those who wished to
provide for the welfare of their posterity ?
M. — Why, I beseech you, should we think
that it would prove injurious ?
B. — Because nothing contributes so much
to the perpetuity of sovereign authority as
a due temperament, no less honourable to
kings than equitable and salutary to the
people. For nature has implanted in the
human mind an elevated and generous prin-
ciple, which makes it unwilling to obey unjust
mandates; and there is nothing so effica-
cious in consolidating societies of men, as a
reciprocity of benefits. The answer, there-
fore, of Theopompus to his wife, who up-
2n
266
DE JURE REGNI APUD SCOTOS I OR,
braided him with having, by the introduc-
tion of the Ephori into power, impaired the
energy of regal government, and with trans-
mitting to his children the crown less than
he had received it, seems not to have been
unwise, when he said, " I have left it so
much the firmer round their head."
M. — What you say concerning the per-
petuity of the sovereign power, I see to be
perfectly true. For the kingdoms of the
Scots and Danes are, I think, by far the
most ancient in Europe ; and this distinc-
tion they seem to me to have secured by
nothing so much as by the moderate use
of the supreme power ; while, at the same
time, the crowns of France, of England,
and of Spain, have passed from family to
family. Yet I know not whether our kings
were as wise as Theopompus.
B. — Though they should not have been
so provident, do you .think that the people
were so foolish as to neglect an opportunity
so seasonably offered, or so struck with
fear, or so seduced by flattery, as to submit
spontaneously to slavery ?
M. — They were not, perehaps. But let
them, as the thing is possible, have been so
blind as not to see what was for their own
benefit ; or let them have been, with their
eyes open, so regardless of their own in-
terest as to have despised it, will they not
be justly punished for their folly ?
B. — It is not likely that any of these sup-
positions was ever realised, since in our
times their conduct has been constantly the
reverse. For beside the constant punish-
ment of bad kings, whenever they became
tyrants to their subjects, there still remain,
even in old families, some vestiges of the
ancient practice. For the ancient Scots or
Highlanders continue, down to our days, to
elect their own chieftians, and to assign
them a council of elders ; and those who
do not obey this council are deprived of the
honourable office. Could then what is still
partially observed with the greatest scrupu-
lousness in certain districts be neglected in
providing for the general good? or would
those become voluntary slaves to the man,
who would deem the grant of royalty, under
legal restraints, a favour ? Can it be sup-
posed that the liberty, which they had se-
cured by valour, defended by arms, and
enjoyed uninterruptedly for ages, should,
without violence, and without war, be re-
signed to him as an unexpected prey ? That
such power was never possessed by our kings
is, without mentioning the punishments so
often inflicted on them for mal -administra-
tion, sufficiently evident from the misfortune
of John Baliol, who was, about 269 years
ago, rejected by the nobility, because he
had subjected himself and his kingdom to
Edward I. of England ; and Robert I. was
substituted in his place. The same truth is
evinced also by that uninterrupted practice,
which has descended from the earliest times
to ours.
M. — What practice do you mean ?
B. — Our kings, at their public inaugura-
tion, solemnly promise to the whole people
to observe the statutes, customs, and institu-
tions of our ancestors, and to adhere strictly
to that system of jurisprudence handed down
by antiquity. This fact is proved by the
whole tenor of the ceremonies at their
coronation, and by their first arrival in our
cities. From all these circumstances it may
be easily conceived what sort of power they
received from our ancestors, and that it was
clearly such as magistrates, elected by suf-
frage, are bound by oath not to exceed.
Upon such terms God offered the crown to
David and to his posterity, promising that
they should be kings as long as they obeyed
the laws which he had ordained. All this
evidence makes it probable that the autho-
rity conferred by our ancestors on their
kings was not unbounded and immense, but
circumscribed and confined to fixed limits.
In favour of this right in the people add,
besides, immemorial prescription and long
use, never contravened by any public de-
cree.
M. — But I fear that kings will not be
easily persuaded, by the consideration of
these probabilities, to submit to such laws,
however much sanctioned by royal oaths, or
justified by popular prescription.
B. — In like manner, it is my belief that
the people will not be easily prevailed upon
to relinquish a right received from their an-
cestors, approved by the concurring voice of
all, and practised for an uninterrupted series
of ages ; nor do I think it necessary to form
conjectures about what they will do, when I
see what they have done. But, if from the
obstinate perverseness of both parties, re-
course should be had to arms, the conqueror
will certainly impose what laws he pleases
on the conquered : but he will impose them
only till he, that has had the worst of the
contest, can resume his arms with recol-
lected strength. These struggles end al-
THE RIGHTS OF THE CROWN IN SCOTLAND.
267
ways with mischief to the people, but gene-
rally with utter ruin to their kings ; and
in these causes all the disasters of all king-
doms originate.
M. — Such must necessarily be the result.
B. — Here, perhaps, I have entered into
a minuter investigation than the subject re-
quired ; but my design was to elucidate, more
completely, the limits of regal power among
us in ancient times. For, if I had insisted
upon the full extent of my legal claims, I
might have taken a much shorter road to
the object of my pursuit.
M. — Though you have nearly satisfied
me already, yet I shall be glad to hear you
explain the nature of this compendious road.
B. — First, then, I wish you to answer,
whether you approve of the definition of a
law given by lawyers, when they say that a
law is a decree made by the people, at the
instance of the legal magistrate.
M. — Undoubtedly it has my approbation.
B. — It was also ascertained that, when
laws were found to be defective, they might,
by the same legislators, be either arn^ided
or repealed. W
M. — It was so.
B. — You see besides, I suppose, that the
persons, who become our kings by birth, be-
come so both by the laws and by the suf-
frages of the people, no less than those con-
stituted such originally by election ; and
that the people, who made the laws, will
not be in want of remedies, not only against
violence and fraud, but also against neglect
in acknowledging the acceptance of them.
M. — I see it clearly.
B. — There is only this difference, that
the law relative to our kings was passed some
ages ago ; and that, when a new reign com-
mences, it is not usual to make a new law,
but to approve the old. But among nations
who hold assemblies 1'or the election of their
several kings successively, the same time
usually serves for passing the law, for mak-
ing and approving the king, and for the
commencement of the reign.
M.— It is so.
B. — Now, if you please, let us briefly
collect the substance of what has been ascer-
tained ; that, if we have anywhere been too
rash in our conclusions, there may be room
for recantation.
M. — With all my heart.
B. — First of all, it was our opinion that a
king is created for the benefit of the people,
and that nothing derived from heaven can
be a greater blessing than a good, or a
greater curse than a bad king.
M.— Bight.
B. — We also said that a bad king is called
a tyrant.
M.— We did so.
B. — And because the crop of good men
is not so abundant as to supply us constantly
with a succession of worthy persons for our
selection, or hereditary right so fortunate in
its line of succession as to furnish us always,
by accident, with a series of good princes,
we accept, as kings, not such as we could
wish, but such as either public consent has
sanctioned, or chance offered. The hazard,
however, incurred either in electino- new
dynasties, or in approving the casual claim-
ants by hereditary right, occasioned a gene-
ral wish for laws that should limit the ex-
tent of regal power. Now, these laws ought
to be nothing else but the express image, as
far as it can be attained, of a good king.
M. — That deduction also we acknowleged
to be legitimate.
B. — What now remains to
the punishment due to tyrants.
M. — That seems the only topic not yet
thoroughly examined.
B. — If a king then should break through
every restraint of law, and behave abso-
lutely as a public enemy, what conduct
ought, in your opinion, to be adopted ?
M. — Here I own myself at a nonplus.
For, though the arguments advanced by
you seem to evince that we cannot have any
natural connexion with such a king, yet the
power of long habit is so great, that with me
it has the force of law ; and, indeed, it takes
such deep and firm root in the minds of
men, that, if it should ever be productive of
error, it is better to bear it, than, by en-
deavouring to cure the disease, to endanger
the constitution of the whole body. For
such is the nature of some remedies, that it
is more eligible to bear the pain which they
occasion, than to search for doubtful reme-
dies, in the trial of which, though everything
should ultimately succeed, the pains result-
ing from their application are so acute, that
the disease itself is less pernicious than its
cure. In the next place, what has still more
weight with me is, that I see what you call
tyranny sanctioned by the oracle of God ;
and what you execrate as the ruin of law,
called, by the Deity, the law of the realm.
My judgment is more decisively swayed by
that single passage, than by all the argu-
268
DE JURE REGNI APUD SCOTOS ; OR,
ments of all the philosophers. If you do
not extricate me from this dilemma, no
human reasoning can, with all its subtilty,
prevent me from deserting at once to the
enemy.
B. — You are involved, I see, in a com-
mon, but enormous cloud of error, by en-
| deavouring to sanction tyranny by tyranny.
■ For how great the tyranny of custom is,
when it has once got thorough hold of the
human mind, we have too often experienced
in the present age, and learned sufficiently
; from ancient examples in the father of his-
) tory, Herodotus. But ancient examples I
need not produce, since the authors are open
; for your inspection. Consider in your own
; mind what multitudes of things, and those
not unimportant, there are, in which the
suggestions of reason have made you deviate
from customs that ages had rendered in-
veterate ; and you will be soon taught by
domestic examples, that, of all others, the
highway, which is here so much recom-
mended, is the most dangerous to follow.
Examine it, therefore, with cautious circum-
spection ; and you will see it strewed with
carnage, and chocked with ruins. But, if
this truth be, according to the usual phrase,
clearer than the light itself, I need not dwell
longer either on the proof or on the illustra-
tion of so evident a proposition. As to the
passage, however, quoted by you from the
book of Kings, and which you rather notice
than explain, beware, I beseech you, of
imagining that what God execrates in the
life of tyrants he should approve in the con-
duct of kings. That you may draw no such
inference, I desire you to consider first,
what the people requested of God ; next,
what their reasons were for a new request ;
and, lastly, what was God's answer? First,
they request a king. And of what sort ?
A king circumscribed by laws. Such they
had; for Samuel had been appointed by
God to preside over them ; and he had for
many years administered justice in a legal
manner, according to the directions of the
divine law. But Ids sons, who sat as judges
during his old age, were guilty of many
flagitious acts, and in their decisions vio-
lated the laws. Hitherto I cannot see that
they had any just reason for desiring a
chancre, but rather a reform of the govern-
ment, which they might certainly have ex-
pected from the beneficence of that God,
who had not long before, and for a reason
nearly similar, extirpated the whole family
of Heli. What then do they request ? A
king, who might, as among the neighbour-
ing nations, be their judge at home and
their general abroad. Now, these were, in
reality, tyrants. For, as the nations of Asia
discover greater servility of mind than the
Europeans, so they will submit with greater
facility to the commands of tyrants ; and,
hence there is not, as far as I know, men-
tion any where made in historians of a king
subject to laws in Asia. Besides, that a
tyrant, and not a king, is here described, is
readily deducible even from this circum-
stance, that in Deuteronomy God had be-
forehand prescribed to them a form of go-
vernment, not only different, but perfectly
the reverse. According to this form,
Samuel, and the rest of the judges, had, for
a series of years, administered justice ; and,
when they rejected it, God complained that
they had rejected him.
M. — Yet God everywhere styles him
king, and not tyrant.
B. — He does, indeed, style him king;
for it is peculiar to God, in addressing a
popular assembly, to adopt popular lan-
guage. Accordingly, in speaking to the
commonalty, he uses a common word ; but
that none might be deceived by its ambi-
guity, he explains here distinctly, in what
sense it was taken among the neighbouring
nations.
M. — Though we should admit the justness
of your reasonings upon that ancient exam-
ple, we are still more closely pressed by a
more modern instance in Paul, who com-
mands us to pray for the life of sovereigns,
and is far from allowing us to renounce their
authority, much less to dethrone, and, when
dethroned, to murder them. And what
princes does he thus recommend to our
prayers ? Of all that ever existed the most
cruel, Tiberius, Caligula, Claudius, and Ne-
ro ; for these were co-eval with the epistles
of Paul.
B. — In comparing the writings of all the
philosophers and lawyers with Paul's, you
seem to me to act rightly, in allowing to his
authority so much preponderance in the ba-
lance. But you should consider whether you
have sufficiently weighed his opinions ; for
you ought to examine, not only his words, but
also at what times, to what persons, and for
what purposes, he wrote. First, then, let
us see what Paul wrote. In the third
chapter of his letter to Titus, he writes,
" Put subjects in mind to be obedient to
THE RIGHTS OF THE CROWN IN SCOTLAND.
269
principalities and powers, and to be ready
for every good work." Here you see, I
presume, what end he assigns to obedience.
In the second chapter of his epistle to Ti-
mothy, the same apostle writes, " That we
should pray for all men, even for kings and
and other magistrates, that we may lead a
peaceable life, in all godliness and purity."
Here, also, you see that he proposes, as the
end of prayer, not the security of kings, but
the tranquillity of the church ; and, hence,
it will be no difficult matter to comprehend
his form of prayer. In his epistle to the
Romans, his definition of a king is accurate,
even to logical subtilty ; for he says that " a
king is God's minister, wielding the sword
of the law for the punishment of the bad,
and for the support and aid of the good."
" For these passages of Paul's," says Chry-
sostom, " relate not to a tyrant, but to a
real and legitimate sovereign, who person-
ates a genuine god upon earth, and to whom
resistance is certainly resistance to the ordi-
nance of God." Yet, though we should
pray for bad princes, we ought not, there-
fore, to infer directly that their vices should
not be punished like the crimes of robbers,
for whom also we are ordered to pray ; nor,
if we are bound to obey a good, does it follow
that we should not resist a bad prince?
Besides, if you attend to the cause which
induced Paul to commit these ideas to writ-
ing, you will find, I fear, that this passage
is greatly against you ; since he wrote them
to chastise the temerity of certain persons,
who maintained that Christians ought not to
be under the control of magistrates. For,
since the magistrates were invested with au-
thority on purpose to restrain wicked men,
to enable us all to live under equal laws, and
to exhibit a living example of divine justice,
they contended that he was of no use among
persons so un contaminated by the contagion
of vice as to be a law to themselves. Paul,
therefore, does not here treat of the magis-
trate, but of the magistracy — that is, of the
function and duty of the person who presides
over others, nor of this nor of that species
of magistracy, but of every possible form of
government. Nor does he contend against
those who maintained that bad magistrates
ought not to be punished, but against per-
sons who renounced every kind of authority ;
who, by an absurd interpretation of Christian
liberty, affirmed that it was an indignity to
men emancipated by the Son of God, and di-
rected by God's Spirit, to be controlled by any
human power. To refute this erroneous opin-
ion, Paul shows that magistracy is not only a
good, but a sacred and divine ordinance, and
instituted expressly for connecting assem-
blages and communities of men, and to enable
them, conjointly, to acknowledge God's bless-
ings, and to abstain from mutual injuries.
Persons raised to the rank of magistrates God
has ordered to be the conservators of his
laws ; and, therefore, if we acknowledge laws
to be, as they certainly are, good things, we
must also acknowledge that their conserva-
tors are entitled to honour, and that their
office is a good and useful institution. But
the magistrate is terrible. To whom, I be-
seech you ? To the good, or to the bad ? To
the good he cannot be a terror, as he secures
them from injury ; but, if he is a terror to
the bad, it is nothing to you, who are directed
by the Spirit of God. What occasion, then,
is there, you will say, for subjecting me to
the magistrate, since I am God's freeman?
Much. To prove yourself God's freeman,
obey his laws ; for the Spirit of God, of
whose direction you boast, framed the laws,
approves of magistracy and authorises obe-
dience to the magistrate. On this head,
therefore, we shall easily come to an agree-
ment, that a magistrate is necessary in the
best-constituted societies, and that he ought
to be treated with every kind of respect.
Hence, if any person entertains contrary
sentiments, we deem him insane, intestable,
and worthy of the severest punishment ;
since he openly resists God's will communi-
cated to us in the Scriptures. For, suppos-
ing that no punishment for the violation of
all laws, human and divine, should be in-
flicted on a Caligula, a Nero, a Domifian,
and other tyrants of that sort, you have here
no countenance from Paul, who is discours-
ing of the power of magistrates and of bad
men by whom it is badly exercised. Indeed,
if you examine that kind of tyrants by Paul's
rule, they will not at all be magistrates.
Again, if you should contend that even bad
princes are ordained by God, take care lest
your language should be charged with cap-
tiousness. For God, to counteract poison by
poison, as an antidote, sometimes sets a bad
man over bad men for their punishment ;
and yet, that God is the author of human
wickedness, no man in his senses will dare
to affirm, as none can be ignorant that the
same God is the author of the punishments
inflicted on the wicked. Even a good ma-
gistrate generally chooses a bad man to be
270
DE JURE REGNI APUD SCOTOS ; OR,
the executioner in punishing the guilty.
This executioner, though thus appointed by
the magistrate to that office, is not, in con-
sequence, indulged with impunity for every
crime, nor raised so high as not to be ame-
nable to the laws. On this comparison I
shall dwell no longer, lest the sycophants of
the court should cry out that I speak with
too little reverence of the supreme magis-
trate. But, let their outcries be ever so
loud, certainly they will never be able to
deny that the function of the executioner is
a part of public, and perhaps also of kingly
duty, even by the confession of kings them-
selves ; since, when violence is offered to any
public minister, they complain that their
own person and majesty are violated. Now,
if any thing can, certainly the punishment
of the wicked must constitute a part of the
king's executive duty. In what predica-
ment stand the governors of cities, the com-
mandants of camps, the mayors of corpora-
tions, and other superior officers? Does
Paul order us to be obedient also to them ?
or does he hold them private persons ? But
not only all inferior magistrates, but even
those who are upon an equality with kings,
it is customary to call to an account for mal-
administration. I could wish, therefore, that
those who dream of this mighty power con-
ferred on kings by Paul's words would either
show, from the same Paul, that kings alone
are to be understood in the name powers,
and, therefore, to be alone exempted from
legal animadversion ; or, if the word powers
mean also other magistrates appointed by
the authority of the same God for the same
purpose, that they would also show where
all magistrates are pronounced to be inde-
pendent of law, and released from the fear
of punishment; or, where that immunity
has been granted only to kings, and denied
to others invested with public authority.
M. — But to the higher powers he com-
mands all to be obedient.
B. — He does so ; but under the name of
powers he must necessarily comprehend
other magistrates also, unless you should,
perhaps, imagine that he thought states
not under a regal government to be with-
out powers, and therefore mere anarchies.
M. — That is not my belief, nor is the
thing likely ; and I am the more steadfastly
of this opinion, that your interpretation of
this passage is confirmed by the agreement
of all the more learned commentators, who
think Paul's dissertation here intended
against those that contended for a total
exemption from the control of all laws and
magistrates.
B. — What then do you think of what I
lately said ? Is it your belief that the most
cruel of all tyrants are not included in
Paul's form of words ?
M. — Yes. For what do you allege to
alter my belief? especially as Jeremiah
earnestly admonishes the Jews, and that
by divine command, to obey the king of
the Assyrians, and by no means to contra-
vene his authority. And hence the infer-
ence is, by a similar mode of reasoning,
drawn, that other tyrants also, however bar-
barous, ought to be obeyed.
B. — Meaning to answer first what you
advanced last, I must desire you to remark
that the prophet does not command the
Jews to obey all tyrants, but only the king
of the Assyrians. Therefore if, from a sin-
gle and particular command, you should be
inclined to collect the form of a general law,
you cannot be ignorant, in the first place, as
logic has taught you better, of what an ab-
surdity you will be guilty ; and that you will,
in the next place, be in danger of an attack,
with similar arms, from the enemies of ty-
ranny. For you must either show in what
the singularity of this instance consists, that
you offer it as a fit object of imitation to all
men on all occasions ; or, if that should be
impossible, you must acknowledge that,
among all the special commands of God,
whatever is ordered in the case of any sin-
gle individual, extends to all mankind. If
you once admit this inference, and admit it
you must, it will be directly objected, that
by God's order also Ahab was slain, and
that a reward was both promised and paid
by divine command to his murderer. There-
fore, when you take refuge under the shelter
of the obedience supposed to be due to all
tyrants, because God, by his prophet, com-
manded his own people to obey a single ty-
rant, your ears will immediately ring with
an opposite cant, that all tyrants ought to
be slain by their own subjects, because Ahab
was, by divine command, murdered by the
general of his own forces. Therefore I ad-
vise you either to provide from Scripture
some stronger bulwark for your tyrants, or
to set it aside for the present, and to return
to the schools of philosophers.
M. — That hint I shall certainly take into
consideration. But, in the meantime, let
us return to the point from which we di-
THE RIGHTS OF THE CROWN IN SCOTLAND.
271
gressed, and examine where the Scripture
grants us a licence to murder princes with
impunity.
B. — My first argument is, that, as there
is in Holy Writ, an express command for
the extirpation of crimes and criminals,
without any exception of degree or rank,
there is nowhere any peculiar privilege
granted, in that respect, to tyrants, more
than to private persons; and my next is,
that the definition of powers furnished by
Paul does not, in the least, refer to tyrants ;
as they accommodate the whole plan of their
government, not to the utility of the people,
but to the gratification of their own lusts.
Besides, you must note, with particular at-
tention, of what vast consequence Paul has
made bishops, bestowing upon their office
the highest encomiums, and making them,
in the opposite scale of comparison, corre-
spond, in some measure, to kings, at least as
far as the nature of their respective func-
tions will admit. For the former are phy-
sicians for internal, and the latter for exter-
nal maladies ; and yet he has not directed
that the one class should be free and loose
from the other's jurisdiction ; but that, as
bishops are, in the exercise of the common
duties of civil life, subject to kings, so kings
also should obey the spiritual admonitions
of bishops. Now these bishops, though ex-
alted to such a height of majesty and gran-
deur, are not exempted by any law, human
or divine, from punishment for their crimes.
And, without mentioning others, the Pope
himself, who is in some measure deemed a
bishop of bishops, and who rises so far above
the eminence of all kings, that he would be
reckoned a kind of god among mortals, is
not even, by his own friends, the canonists,
the class of men most devoted to his will,
exempted from legal punishment. For judg-
ing it absurd for a god, a name which
they do not hesitate to give him, to be sub-
ject to human animadversion, and thinking-
it unjust that the greatest crimes, and most
flagitious enormities, should remain unpun-
ished, they devised a method by which both
the crimes might be punished, and the Pope
be still held sacred and inviolable. For they
declared the right of the Pope to be one
thing, and the right of the person who
should be Pope, another ; and, while they
exempt the Pope, whom they invest with
the attribute of infallibility, from the cog-
nizance of the laws, they still acknowledge
the person, who is Pope, to be liable to vices,
and punishable for his vices ; and to this doc-
trine they have given their unequivocal sanc-
tion, not more by the subtilty of their rea-
sonings, than by the severity of their punish-
ments. It would be tedious to enumerate
the pontiffs, or, in their language, the men
who bore the character of pontiffs, and were
during their lives not only forced to forswear
the office, but, even after their death, dug
from their tombs and cast into the Tiber.
Without recurring to ancient examples, we
need only refer to the late instance of Paul
IV., whose fate is still fresh in our memo-
ries, and against whom his favourite Rome
expressed the common hatred by a new kind
of decree. For the vengeance from which
he had escaped was wreaked upon his rela-
tions, upon his statues, and upon his por-
traits. Nor ought you to imagine that ex-
cessive subtilty is couched under this inter-
pretation, by which we separate the person
from the power ; since it is acknowled°ed
even by philosophy, and approved by the an-
cient commentators, and it is not unknown
to the untutored vulgar, however little ac-
customed to the refinements of disputation.
Mechanics do not consider it as a disgrace to
their trade, that either a carpenter or baker
is punished for an act of robbery ; but re-
joice rather that their company is purged
from the stain of such infamous malefactors.
If any of them should entertain a contrary
sentiment, there is, I think, reason to fear
that he grieves more at the punishment of
men with whom he is connected by a con-
sciousness of guilt, than at the infamy of his
company. Indeed, if kings did not form
their councils of miscreants and flatterers,
and measure their own importance by the
gratitude due to their virtues rather than by
the impunity of their crimes, they would, in
my opinion, not be vexed at the punishment
of tyrants, or think that their fate, however
grievous, was any diminution of regal digni-
ty ; but rather be pleased to see its honour
cleared from a stain of so foul a nature, espe-
cially since they use to be violently angry,
and with great justice, with those who cloak
their own misdeeds under the regal name.
M. — And not without reason, assuredly.
But I wish that you would quit this topic,
and proceed to the other subjects, which
you proposed to handle.
B. — What subjects, pray, do you mean ?
M. — The periods in which Paul com-
posed his writings, and the persons to whom
he addressed them ; for I am eager to know
272
DE JURE REGNI APUD SCOTOS ; OR,
of what advantage the knowledge of these
circumstances can be to your argument.
B. — Here, too, you shall be humoured.
And first, in treating of the time, let me
observe that Paul wrote these passages
when the infant church was still in her
cradle ; a time that made it necessary for
her not only to be free from guilt, but also
not to afford even an unjust cause of ac-
cusation to persons in active search of a
handle for calumny ; and, in the next place,
that he wrote to men collected from various
nations, and indeed from the whole extent
of the Roman empire, into one blended
mass. Among these there were but few
distinguished for opulence ; hardly any that
were, or had been, magistrates ; not many
that held the rank of citizens, and these
mostly lodgers, or even mere freed-men ;
and the rest almost all mechanics and slaves.
Among these, however, there were not
wanted men who extended Christian liberty
farther than the simplicity of the gospel
would admit. Accordingly, this multitude,
composed of a promiscuous crowd of plebe-
ians, that, with great labour, gained a scanty
livelihood, had not so much reason to be
anxious about the form of the government,
the majesty of the empire, and the life and
duty of kings, as about public tranquillity and
domestic repose, and could hardly claim any
other blessing but the happiness of being
any how sheltered under the shade of the
empire. If such men attempted to grasp
any part of the public administration, they
deserved to be considered not only as foolish,
but absolutely insane ; and they would de-
serve it still more, if they issued from their
cells, and proved troublesome to the minis-
ters who managed the helm of government.
There was a necessity, too, for checking
premature luxury, that ill-omened interpre-
ter of Christian liberty. What then did
Paul write? No new precepts, certainly,
but those common maxims, that subjects
should be obedient to the magistrates, ser-
vants to their masters, wives to their hus-
bands, and not imagine that the yoke of the
Lord, though light, releases us from the ties
of morality ; but ought rather to make us
more conscientious in the observance of them,
so that, in all the gradations of duty, we
might omit nothing that could help us to
conciliate the good will of all men by honest
practices. The ultimate consequence would
thus be, that the name of God would, to all
nations, sound more pleasing, and the glory
of the gospel would be more widely dif-
fused. To effect these purposes, there was
a necessity for public peace, of which princes
and magistrates, though, perhaps, bad men,
were the conservators. Do you wish to
have this matter set before your eyes in a
lively picture ? Figure to yourself any of
our doctors to be writing to the Christians
now living under the Turks ; to men, I say,
of slender fortune, of humble mind, without
arms, few in number, and exposed to every
injury from every man ; what other advice,
I pray, could he give, but the advice of Paul
to the church at Rome, and of Jeremiah to
the exiles in Assyria ? Now, a most con-
clusive argument, that Paul's attention was
here directed solely to those persons to
whom he was then writing, and not to the
whole body of the citizens, is, that though
he minutely explains the mutual duties of
husbands to their wives, of wives to their
husbands, of parents to their children, of
children to their parents, of masters to their
slaves, and of slaves to their masters, he
does not, in describing the duty of a magis-
trate, address, as in the preceding parts,
them expressly by name. For what reason
then must we suppose that Paul gave no
directions to kings and to other magistrates,
especially as their passions required much
more than those of private persons the coer-
cive restraints of law ? What other reason
can we imagine, but that, at the time in
question, there were neither kings nor other
magistrates to whom he could write. Con-
ceive Paul to be living in our times, when
not only the people, but the sovereigns adopt
the name of Christians. At the same period,
let there be a prince, who thinks that not
only human, but also divine laws, ought to
be subservient to his capricious lusts ; who
would have not only his decrees, but even
his nods, held as laws ; who, as Paul says in
the gospel, " neither fears God nor reve-
rences men ;" who, not to say anything
worse, squanders the revenues of the church
upon parasites and buffoons; who derides
the sincere observers of religion, and deems
them fools and madmen ; what, do you
think, would Paul write concerning such a
man ? If he should wish to be thought con-
sistent, he will declare him unworthy of
being reckoned a magistrate ; he will put all
Christians under an interdict to abstain from
all familiarity, all conversation, and all com-
munion with him ; his punishment by the
civil laws he will leave to the citizens, and
THE RIGHTS OF THE CROWN IN SCOTLAND.
273
will not think them stepping beyond their
duty, when they announce that the man,
with whom the divine law will allow them
no commerce, can no longer be their king.
But the servile herd of courtiers, finding
every honourable resource fail, will have the
impudence to say, that God, in his wrath,
lets tyrants loose upon nations, as public
executioners, to wreak their vengeance.
Now, though I should acknowledge the
truth of this assertion, yet it is equally true,
that God generally excites some poor and
almost unknown individuals of the lowest
vulgar to check the extravagant pride and
lawless career of tyrants. For God, as was
said before, commands the wicked to be ex-
terminated, and excepts neither rank, nor
sex, nor condition, nor even person ; since
to him kings are not more acceptable than
beggars, it may, therefore, be truly af-
firmed, that God, who is equally the father
of all, from whose eye nothing can be hid,
and whose power nothing can resist, will
leave no crime unpunished. Besides, another
parasite may perhaps start up, and ask me
to produce, from Holy Writ, an example of
a king punished by his subjects ; and yet, if
no such instance should immediately occur,
it will not directly follow that what we do
not there read should be held wicked and
nefarious. I can enumerate, from the codes
of many nations, numerous and most whole-
some laws, of which there is not the least
trace in the sacred Scriptures. For, as it
has been established by the unanimous con-
sent of all men, that what the law commands
should be deemed just, and what it forbids,
unjust, so we find no human records which
forbid us ever to do what is not contained in
the law. For such servility has never been
recognised ; nor will the nature of human
affairs, so fruitful in new examples, allow it
to be recognised to such a degree, that
whatever is not ordained by some law, or
evidenced by some illustrious record, should
be instantly reckoned wicked and nefarious.
Therefore, if any man should require of me
to show him, in the books of the sacred
volumes, an instance in which the punish-
ment of kings is approved, I shall recipro-
cally ask where it is disapproved. Indeed,
if it should be a rule that nothing ought to
be done without a precedent, only a small
remnant of our civil constitutions, and even
of our laws, will continue standing ; for the
greatest part of them is founded, not upon
ancient precedents, but established in op-
position to new and unprecedented encroach-
ments. But now we have given a fuller answer
than the case required to the sticklers for pre-
cedents. For, though the kings of the Jews
should not have been punished by their sub-
jects, it does not greatly affect our reason-
ing ; as they were not originally created by
the people, but assigned to them by God.
With very good reason, therefore, he who
conferred the honour also exacted the pun-
ishment. But we contend that the people,
from whom our kings derive whatever power
they claim, is paramount to our kings ; and
that the commonalty has the same jurisdic-
tion over them which they have over any
individual of the commonalty. The usages
of all nations, that live under legal kings,
are in our favour ; and all states, that obey
kings of their own election, in common
adopt the opinion that whatever right the
people may have granted to an individual,
it may, for just reasons, also re-demand.
For this is an inalienable privilege which all
communities must have always retained.
Accordingly, Lentulus, for having conspired
with Cataline to overturn the republic, was
forced to resign the prcetorship ; and the
decemvirs, the founders of the laws, though
invested with supreme magistracy, were de-
graded ; and some Venetian doges, and
Chilperic, king of the Franks, after being
stripped of every imperial badge, grew old,
as private persons, in monasteries ; and, not
long ago, Christian, king of the Danes,
ended his life in prison twenty years after
he had been dethroned. Nay, even the
dictatorship, which was a species of despo-
tism, was still subordinate to the power of
the people. And it has been everywhere
an invariable usage, that public favours, im-
properly bestowed, might be reclaimed ; and
that even liberty, the favourite object of law,
might be taken from ungrateful freed-men.
These observations, which, I hope, will be
sufficient, I have made, that we may not seem
to be the only people who have adopted what
is called a new practice towards our kings.
Everything, that properly relates to us, might
have been despatched in few words.
M. — In what manner ? This is an argu-
ment which I should be much pleased to
hear discussed.
B. — I could enumerate twelve or more of
our kings, who, for their villany of flagitious-
ness, were either condemned to perpetual
imprisonment, or escaped the punishment
due to their crimes, by exile or by death.
2o
274
DE JURE REGIS I APUD SCOTOS : OR,
But, that none may allege that I produce
antique and obsolete precedents, if 1 should
mention the Calens, Ewens, and Ferchars,
I shall go back for a few examples no far-
ther than the memory of our fathers. James
III. was, in a public assembly of all the or-
ders, declared to have been justly slain for
bis extreme cruelty to his relations, and for
the enormous turpitude of his life ; and in the
act there was inserted a clause, providing that
those who had projected the conspiracy, or
aided by their person or their purse, should
never, on that account, be injured ormolested.
What they declared, after the event, to
have been a just and regular act, they un-
doubtedly meant to propose as an example
to posterity, and that certainly with no less
propriety than Quinctius acted, when he de-
livered, from the tribunal, a panegyric on
Servilius Ahala, for having, in the forum,
slain Spurius Mselius, who hesitated and re-
fused to plead his cause in a court of law ;
and gave it as his opinion, that he was not
polluted with the blood of a citizen, but en-
nobled by the death of a tyrant, and found
his opinion confirmed by the applauding
voice of succeeding generations. When he
thus approved the assassination of a man who
only aimed at tyranny, what do you think
he would do to a tyrant, who, upon the
goods of his fellow-citizens, practises rob-
bery, and upon their persons the trade of a
butcher? What was the conduct of our
countrymen ? In granting, by a public
decree, impunity to a perpetrated deed,
I they certainly enacted a law including any
similar event that might occur in future.
For, in the result, it makes no difference
whether you pass sentence upon what is
past, or enact a statute for what is to come ;
tor in either way you give judgment con-
cerning the nature of the fact, and concern-
ing the punishment or reward of its author.
M. — These arguments, perhaps, will,
among our people, be deemed valid ; but
abroad, among other nations, I know not
how they will be relished. You see that I
must satisfy them, not as in a court of jus-
tice, aoitating a criminal question, but, be-
fore the public eye, a question of reputation,
affecting, indeed, not myself, as 1 am far
beyond the reach of suspicion, but my
countrymen. For I am afraid that the
decrees, by which you think yourself suf-
ficiently justified, will be blamed by foreign
nations more than the deed itself, however
pregnant with odium and atrocity. With
respect to the precedents which you have
produced, you know, if I mistake not, what
is usually said by every man according to
his particular disposition and discernment.
Therefore, since you seemed to me to have
derived your explanation of other topics, not
so much from the decrees of men, as from
the fountains of nature, I wish that you
would, in a few words, unfold what you have
to say for the equity of that law.
B. — Though to plead in a foreign com!,
in defence of a law adopted from the first
oi igin of the Scottish monarchy, justified by
the experience of so many ages, necessary to
the people, neither severe nor dishonourable
to their kings, and not till now accused of
inconsistency with natural law, may seem
unreasonable ; yet, on your account, I shall
make the trial. And, as if I were arguing
with the very persons who may be disposed
to give you trouble, first I ask, WTiat is it
that you find here worthy of censure ? Is
it the cause which gave rise to the law, or
the law itself? The cause was a desire to
restrain the unbridled passions of kings ; and
he who condemns this purpose must condemn
all the laws of all nations, as they were all
enacted for the same reason. Is it the law
itself that you censure, and do you think it
reasonable that kings should be freed from
every restraint of law ? Let us also exa-
mine whether such a plan is expedient.
To prove that it cannot be expedient for
the people, we need not waste many words.
For if, in the preceding part of our conver-
sation, we were right in comparing a king
to a physician, it is evident that, as it was
there proved not to be expedient for the
people that a physician should be allowed to
kill any man at pleasure, so it cannot be ad-
vantageous to the public to grant to a king a
license to commit promiscuous havoc among
the whole community. With the people,
therefore, who possess the sovereign power
in making the law, we ought not to be
angry, if, as they wish to be governed by a
good king, they should also wish that a king,
who is not the very best of men, should be
governed by the law. Now, if this law be
not advantageous to the king, let us see
whether he ought to propose to the people
to relinquish some part of their right, and
let us appoint the meeting of parliament for
the consideration of its repeal, not at the
third market, but, according to our custom,
on the fortieth day. In the meantime, in
order to discuss here between ourselves the
THE RIGHTS OF THE CKUWX IN SCOTLAND.
275
propriety of the measure, allow me to ask
you, Whether you think that he, who re-
leases a man in a state of insanity from a
strait-waistcoat, consults the true interest of
the insane person ?
M. — By no means.
B. — What do you say of him, who, at his
constant request, gives to a man, labouring
under such a paroxysm of fever as not to be
far from insanity, cold water ? Do you con-
ceive him to deserve well of his patient ?
M. — But I speak of kings in their sound
senses; and deny that men in full health
have any occasion for medicines, or kings,
in their sound senses, for laws. But you
would have all kings be thought bad, for
upon all you impose laws.
B. — Not all bad, by any means; but
neither do I look upon the whole people as
bad ; and yet the law addresses the whole
with one voice. That voice the bad dread,
and the good, being not concerned, hear at
their ease. Thus neither good kings have
any reason for feeling indignant at this law ;
nor would bad kings, if they had wisdom,
fail to return thanks to the legislator for or-
daining that which he conceived likely to be
in the event prejudicial, should in the act be
illegal. If ever they recover a sound state
of mind, they will certainly come to this re-
solution, like persons relieved from distem-
per, and expressing their gratitude to the
physician whom they hated for not gratify-
ing the calls of their sickly appetites. But,
if they should continue in their state of in-
sanity, he who humours them most should
be deemed most their enemy. In this class
we must rank flatterers, who. by cherishing
their vices with blandishments, exasperate
their disease, and generally fall headlong at
last in one common ruin with their kings.
M. — Certainly I cannot deny that such
princes deserved, and still deserve, to be fet-
tered by laws ; for no monster is more out-
rageous, or more pernicious than man, when,
as in the fables of the poets, he has once de-
generated into a brute.
B. — On this assertion you would insist
still more if you had remarked what a com-
plicated animal man is, and of what various
monsters he is composed. This truth the
ancient poets discerned with great acuteness,
and expressed with no less elegance, when
they record that, in the formation of man,
Prometheus borrowed from the several ani-
mals certain particles with which he consti-
tuted his mingled frame. To recount the
natures of nil separately would be endless ;
but, undoubtedly, there appear evidently in
man two abominable monsters, anger and
lust. And what else is the effect, or the ob-
ject of laws, but to render these monsters
obedient to reason, and to coerce them,
while not obedient, by the power of their
mandates. He, therefore, who releases either
a king, or any other man, from the shackles
of law, releases not only a single man, but
sets loose against reason two of the most
cruel monsters, and arms them for breaking
through the barriers of order ; so that truth
and rectitude seem to have guided the
tongue of Aristotle, when he said that " He
who obeys the laws, obeys God and the law ;
and that he who obeys man, obeys man and
a wild beast."
M. — Though these doctrines seem to be
expressed with much neatness and elegance,
yet I think that we have fallen into a double
error; first, because our last inferences do
not seem to be perfectly correspondent to
the premises; and next, because, though we
should, in other respects, be found consistent,
yet we have not, in my opinion, made any
considerable progress towards the end of our
investigation. In the preceding part, we
agreed that the voice of the king and of the
law should be the law ; but here we have
made it dependent on the law. Now,
though we should grant all this reasoning to
be ever so just, what great advantage do we
derive from the concession ? Who will call
a king that has become a tyrant to an ac-
count ? For I fear that justice, unsupported
by physical strength, will not, of itself, be
sufficiently powerful to coerce a king that
has forgotten his duty, or to drag him by
violence to plead his cause.
B. — I suspect that you have not suffi-
ciently considered the conclusions founded
on our preceding debate about the regal
power. For, if you had sufficiently con-
sidered them, you would have easily seen
that the observations which you have just
advanced are not in the least repugnant.
That you may the more readily comprehend
my meaning, first give me an answer to this
question : — " When a magistrate or secre-
tary, puts words into the mouth of the pub-
lic crier, is not the voice of both the same ;
— the voice, I mean, of the crier and of the
secretary ?"
M. — The same entirely.
B. — Which of the two appears to you to
be the superior ?
276
HE JURE HEGXI APL'D SCOTOS
M. — He that dictates the words.
B. — What do you think of the king, the
author of the edict ?
M. — That he is greater than either.
B. — According to this representation,
then, let us compare the king, the law, and
the people. Hence we shall find the voice
of" the king and of the law to be the same.
But whence is their authority derived ? The
king's from the law or the law's from the king ?
M. — The lung's from the law.
B. — How do you come at that conclusion ?
M. — By considering that a king is not in-
tended for restraining the law, but the law for
restraining the king ; and it is from the law
that a king derives his quality of royalty ;
since without it he would be a tyrant.
B. — The law then is paramount to the
king, and serves to direct and moderate his
passions and actions.
M. — That is a concession already made.
B. — Is not then the voice of the people
and of the law the same ?
M. — The same.
B. — Which is the more powerful, tie
people or the law ?
M. — The whole people, I imagine.
B. — Why do you entertain that idea ?
M. — Because the people is the parent, or
at least the author of the law, and has the
power of its enactment or repeal at pleasure.
B. — Since the people, then, is more
powerful than the king, let us see whether
it is not before the people that he must be
called to account. And here let us inquire,
whether what has been instituted for the
sake of another is not of less value than the
object of its institution.
M. — That proposition I wish to hear more
distinctly explained.
B. — Attend to the following line of argu-
ment.— Is not the bridle made for the horse ?
M. — For the horse undoubtedly.
B. — What do you say of the saddle, the
harness and spurs ?
M. — That they were intended for the
same purpose.
B. — Therefore, if there was no horse,
they would be of no use ?
M. — Of none.
B. — A horse then takes the lead of them
all?
M. — Certainly.
B. — What do you think of the horse?
For what use is he so much in request ?
M. — For many; and particularly for
gaining victory in war.
B. — Victory then we value more than
horses, arms, and other preparatory instru-
ments of war.
M. — Much more, indisputably.
B. — In the creation of a king, what had
men principally in view ?
M. — The interest of the people, I believe.
B. — Therefore, if there were no society
of men, there would be no occasion for kings.
M. — None at all.
B. — The people, therefore, take the lead
of the king.
M. — The conclusion is unavoidable.
B. — If the people take the lead, they are
entitled to the superiority. Hence, when
the king is called before the tribunal of the
people, an inferior is summoned to appear
before a superior.
M. — But when can we hope for the feli-
city of seeing the whole people unanimously
agree to what is right ?
B. — That is indeed a blessing, of which
we can scarcely have any hope, and of which
we need not certainly wait in expectation ;
since, otherwise, no law could be passed, nor
magistrate created. For there is hardly
any law so equitable to all, or any man so
much in possession of popular favour, as not
to be somewhere the object either of enmity,
or of envy, or of detraction. The only ques-
tion is, whether the law is advantageous to
the majority, and whether the majority has
a good opinion of the candidate ? Therefore,
if the people can ordain a law, and create a
magistrate, what hinders it to pass sentence
upon him, and to appoint judges for his
trial ? Or, if the tribunes of the people at
Borne, or the Ephori at Sparta, were ap-
pointed to mitigate the rigour of kingly go-
vernment, why should any man think it
iniquitous, in a free people, to adopt in a
similar, or even a different manner, prospec-
tive remedies for checking the enormities of
tyranny ?
M. — Here, I think, I nearly see how far
the power of the people extends ; but what
its will may be, what laws it may pass, it is
difficult to judge. For the majority is com-
monly attached to ancient usages, and abhors
novelty ; a circumstance the more surprising,
that its inconstancy in food, raiment, build-
ing, and every species of furniture, is no-
torious.
B. — Do not imagine that I have made
these remarks, because I wish here to intro-
duce any novelty. No ; my sole object was
to show that it was an ancient practice to
THE RIGHTS OF THE CROWN IN SCOTLAND.
277
make kings plead their cause before a court
of justice : a thing which you conceived to
be not only a novelty, but almost an incredi-
bility. For, without mentioning the nume-
rous instances of it among our forefathers, as
we have before observed, and as you may
yourself easily learn from history, have you
never heard that candidates for the crown
referred their dispute to arbitrators !
M. — That such a mode of decision was
adopted once by the Persians, I have cer-
tainly heard.
B. — Our historians record, that our
Grceme, and our Malcolm II., followed the
same plan. But, that you may not allege
that it is not by their own consent that the
litigants submit to this kind of arbitrators,
let us come to the ordinary judges.
M. — Hear I fear that you will be reduced
to the same dilemma with those who should
spread a net in the ocean to catch whales.
B.— How so ?
M. — Because arrest, coercion, and anim-
adversion, must always descend from the
superior to the inferior. Now, before what
judges will you order the king to appear ?
Before those on whom he is invested with
supreme power to pass sentence, and whose
proceedings he is empowered to quash by a
mere prohibition ?
B. — But what will you say, were we
able to discover a superior power that has
the same claim of jurisdiction over kings,
that kings have over others ?
M. — That topic I wish to hear argued.
B. — This very jurisdiction, if you recol-
lect, we found to be vested in the people.
M. — In the whole people, I own, or in
the greater part. Nay, I grant you still
more, that it is vested in those to whom the
people, or a majority, may have transferred
that power.
B. — You are obliging in relieving me
from that labour.
M. — But you are not ignorant that the
greater part of the people is, either through
fear or rewards, or from the hope of bribes,
or of impunity, so corrupt as to prefer their
own interests or pleasures to the public uti-
lity, and even to personal safety. Besides,
those who are not influenced by these con-
siderations are not very many ; for
" The good are rare, and can in numbers scarce
pretend.
With Nile in mouths, or Thebes in portals, to
contend."
All the remainino- dregs of the sink, those
that are fattened with blood and slaughter,
envy other men's liberty, and sell their
own. But, forbearing to mention persons
to whom the very name even of bad kings
is sacred, I omit also those, who, though not
ignorant of the extent of law and equity,
still prefer peaceable sloth to honourable
danger, and, in suspense of mind, adapt all
their schemes to their expectations of the
event, or follow the fortune, not the cause
of the parties. How numerous this class of
people is likely to be cannot escape your
notice.
B. — Numerous, undoubtedly, they will
be; but not the most numerous class. For
the injuries of tyrants extend to multitudes,
and their favours but to few. For the de-
sires of the vulgar are insatiable, and, like
fires, require a constant supply of fresh fuel;
for what is forcibly extorted from multitude,
supports a few in a starving condition, in
stead of satisfying their hunger. Besides,
the attachment of such men is variable, —
" And still with fortune's smiles both stands and
falls."
But, if they were ever so consistent in their
plan of politics, yet they do not deserve to
be ranked among citizens ; for they in-
fringe, or rather betray, the rights of human
society ; a vice, which, if intolerable in a
king, is much more so in a private indivi-
dual. Who then are to be reckoned citizens?
Those who obey the laws and uphold the
social compact, who choose rather to undergo
all labours and all dangers for the common
safety than, dishonourably, to grow old in
ease and sloth, who always keep before their
eyes, not the enjoyments of the present
hour, but the meed of eternal fame among
posterity. Hence, if any persons should
be deterred from incurring danger through
fear or regard to their property, yet still the
splendour of a glorious action, and the beauty
of virtue, will rouse desponding minds; and
those who will not have the courage to be
the original authors or leading actors will
not refuse to be companions. Therefore, if
citizens be estimated, not by their number,
but by their worth, not only the better, but
also the greater part will take their stand
in the ranks of liberty, of honour, and of
national defence. For that reason, if the
whole body of the populace should be of a
different sentiment, it cannot in the least
affect the present argument ; because the
question is not what is likely to happen, but
278
DE JUKE REGXI APUD SCOTOS ; OR,
what may be legally done. But now let us
come to the ordinary judges.
M. — Of that discussion I have been long
in expectation.
B. — If a private person should urge that
the king, in violation of all equity, keeps
possession of the whole, or any part of his
landed estate, how do you think this person
is to act ? Shall he resign his land, because
he cannot appoint a person to sit in judg-
ment on the king ?
M. — By no means. But he will call not
upon the king, but upon his attorney to ap-
pear in court.
B.— Now mark the force and tendency
of the subterfuge which you use. For it
makes no difference to me. whether the king
shall appear, or his attorney ; since, either
way, the litigation must proceed at the risk
of the king, and the loss or gain from the
issue of the suit will be his, and not his
attorney's. In a word, he is himself the
culprit, or the person whose interest is in
dispute. Now, I wish that you would con-
sider, not only how absurd, but also how
iniquitous it is to permit a suit to be com-
menced against a king for a paltry piece of
land, for a skylight or for a gutter, and to
refuse all justice in a case of parricide, em-
poisonment, or murder ; in small matters to
use the utmost severity of law, and on the
commission of the most flagitious crimes to
allow every license and impunity, so as to
make the old saying appear an absolute
truth, " that the laws are mere cobwebs,
which entangle flies, and leave a free passage
to large insects." Nor is there any justice
in the complaint and indignation of those
who say that it is neither decent nor equit-
able that a man of an inferior order should
pass sentence upon a king, since it is a
known and received practice in a question of
money or land, and the most elevated per-
sons after the king generally plead their
cause before judges, that are neither in
riches, nor in nobility, nor in merit, their
equals, nor indeed much superior in emin-
ence to the vulgar, and are much farther be-
low the defendants in the scale of citizen-
ship than men of the highest rank are below
kings. And yet kings and men of the first
quality think this circumstance no degrada-
tion from their dignity. Indeed, if we
should once acknowledge it as a received
maxim that the judge must always be, in
every respect, superior to the defendant,
the poor must wait in patient expectation
till the king has either inclination or leisure
to enquire into any charge of injustice pre-
ferred against a noble culprit. Besides,
their complaint is not only unjust, but false ;
for none that comes before a judge comes
before an inferior ; especially as God him-
self honours the tribe of judges so far as to
call them, not only kings, but even gods, and
thus to communicate to them, as far as the
thing is possible, his own dignity. Accord-
ingly, the popes of Home, who graciously
indulged kings with leave to kiss their toes,
who, on their approach, sent their own
mules to meet them, as a mark of honour,
who trod upon the necks of emperors, were
all obedience when summoned into a court
of justice ; and, when ordered by their
judges, resigned the pontifical office. John
the Twenty-Second having, after his flight,
been dragged back in chains, and released
at last, with difficulty, for money, prostrated
himself before another that was substituted
in his place, and by that prostration sanc-
tioned the decree of his judges. What was
the conduct of the synod of Bale ? Did it
not, by the common consent of all the elders,
determine and ordain that the Pope is sub-
ject to a council of priests ? By what means
those fathers were persuaded to come to this
resolution you may learn from the acts of the
councils. I know not, then, how kings, who
allow the majesty of the popes to exceed
theirs so much in eminence as to oversha-
dow them all with the height of its exalta-
tion, can think it any diminution of their
dignity to stand in that place to which a
pope, who sat upon a much higher throne,
thought it no indignity to descend ; namely,
to plead his cause betbre a council of cardi-
nals. Why should I mention the falsehood
chargeable upon the complaint of those who
express indignation at seeing kings sum-
moned before the tribunal of an inferior ?
For he that condemns or acquits in judicial
questions is not a Titius, or a Sempronius,
or a Stichus, but the law itself ; to which
obedience in kings is declared to be honour-
able by two illustrious emperors, Theodosius
and Valentinian. Their very words, as they
richly deserve to be remembered in every
age, I shall here quote : — •" It is an expres-
sion," say they, " worthy of the sovereign's
majesty, to confess that the prince is bound
by the laws. And, in reality, the imperial
dignity is exalted by subjecting the prince's
power to the laws ; and that we announce,
by the oracle of the present edict, which
HE RIGHTS OF THE CROWN IX SCOTLAND.
279
specifies what license we do not allow to an-
other." These sentiments were sanctioned
by the best of princes, and cannot but be
obvious to the worst. For Nero, when
dressed like a musical performer, is said to
have been observant, not only of their mo-
tions and gesture, but also to have, at the
trial of skill, stood suspended between hope
and fear, in anxiety for victory; for, though
he knew that he should be declared victori-
ous, yet he thought the victory would be
more honourable, if he obtained it, not from
courtly adulation, but by a regular contest ;
and he imagined that the observation of its
rules tended not to the diminution of his
authority, but to the splendour of his victory.
M. — Your language, I see, is not so ex-
travagant as I first had thought, when you
wished to subject kings to the laws ; for it is
founded, not so much upon the authority of
philosophers, as of kings, and emperors, and
ecclesiastical councils. But I do not tho-
roughly comprehend what you mean by say-
ing that, in this case, the judge is not the
man, but the law.
B. — Refresh your memory a little with a
review of our former deductions. Did we
not say that the voice of the king and of the
law was the same ?
M.— We did.
B. — What is the voice of the secretary
and of the crier when the law is proclaimed ?
M. — The same.
B. — What is that of the judge when he
grounds his decisions on the law ?
M. — The same.
B. — But whence is their authority de-
rived,— the judge's from the law, or the law's
from the judge ?
M. — The judge's from the law.
B. — The efficacy of the sentence then
arises from the law, and the pronunciation
of the words only from the judge ?
M. — So it seems.
B. — Nay, what can be more certain, since
the sentence of a judge, if conformable to law,
is valid ; and, if otherwise, is null ?
M. — Nothing can be more true.
B.— You see, then, that the judge de-
rives his authority from the law, and not
the law from the judge.
M.— I do.
B. — Nor does the humble condition of
the publisher impair the dignity of the law ;
but its dignity, whether it be published by a
king, or by a judge, or by a crier, is always
the same ?
M. — Completely so.
B. — The law, therefore, when once or-
dained, is first the voice of the king, and
next of others.
M. — It is so.
B. — A king, therefore, when condemned
by a judge, seems to be condemned by the
law.
M.— Clearly.
B. — If he is condemned by the law, he is
condemned by his own voice ; since the voice
of the law and of the king is the same.
M. — By his own voice it should seem, as
much as if he were convicted by letters writ-
ten with his own hand.
B. — Why then should we be so much
puzzled by scruples about the judge, when
we have the king's own confession, that is,
the law, in our possession ? Nay, let us also
examine an idea that has just come into my
head, whether a king, when he sits as judge
in a cause, ought not to divest himself of
every character, — of a brother's, a father's,
a relation's, a friend's, and an enemy's, and
to consider only his function as a judge ?
M.— He ought.
B. — And to attend solely to that charac-
ter which is peculiarly adapted to the cause ?
M. — I wish that you would here speak
with more perspicuity.
B. — Attend then. — When any man clan-
destinely seizes another's property, what
name do we give to the deed ?
M.— We call it theft.
B. — And by what appellation do we qua-
lify the actor ?
M. — By the appellation of thief.
B. — What do we say of him who uses
another man's wife as his own ?
M. — That he commits adultery.
B. — What do we call him ?
M. — An adulterer.
B. — How do we denominate him who sits
to judge ?
M. — We style him judge.
B. — In the same manner, also, names
may be given to others from the actions in
which they are employed.
M— They may.
B. — A king, therefore, in administering
justice, ought to divest himself of every
character but a judge's.
M. He certainly ought, and particularly
of every character that can, in his judicial
capacity, be prejudicial to either of the liti-
gants.
B. — What do you say of him who is the
280
DE JURE REGXI APUD SCOTOS ; OR,
subject of the judicial inquiry ? What name
shall we give him from the legal action ?
M. — We may call him culprit.
B. — And is it not reasonable that he
should lay aside every character likely to
impede the legal course of justice ?
M. — If he should stand in any other pre-
dicament but a culprit's, it is certainly
nothing to the judge; since in a judicial
question, God orders no respect to be paid
even to the poor.
B. — Therefore, if any man, who is both a
painter and a grammarian, should be en-
gaged in a law-suit about painting with an-
other who is a painter but no grammarian,
ought he, in this case, to derive any advan-
tage from his skill in grammar ?
M. — None.
B. — Nor from his skill in painting, if
he should be contending for superiority in
grammar ?
M. — Just as little.
B. — In a judicial trial, therefore, the
judge will recognise only one name ; to wit,
that of the crime, of which the plaintiff ac-
cuses the defendant.
M. — One only.
B. — Therefore, if the king be accused of
parricide, is the name of king of any conse-
quence to the judge?
M. — Of none ; for the controversy hinges,
not upon royalty, but upon parricide.
B. — AVhat do you say, if two parricides
should be summoned before a court of justice,
the one a king and the other a beggar ?
Ought not the judge to observe the same
rule in taking cognizance of both ?
M. — The same, undoubtedly ; and here
Lucan seems to me to have spoken with no
less truth than elegance, when he says,
" Caesar, my captain on the German plains,
Is here my mate. — Guilt equals whom it stains."
B. — With truth, certainly. Sentence,
therefore, is here to be pronounced, not
upon a king and a pauper, but upon parri-
cides. For the sentence would then concern
a king, if the question were, which of two
persons ought to be a king ? or if it were in-
quired, whether Hiero be a king or a tyrant ?
or if the controversy were about anything
else belonging properly to the office of king,
as a painter becomes the subject of judicial
disquisition, when the question is, whether
he knows the art of paining ?
M. — What is to be the result, if the king
should refuse, of his own accord, and can-
not be dragged by force, to appear in a
court of justice ?
B. — Here he stands in the same predica-
ment with all malefactors ; for no robber or
murderer will spontaneously submit to jus-
tice. But you know, I presume, the extent
of the law, and that it allows a thief in the
night to be killed any how, and a thief in
the day to be killed if he uses a weapon in
his defence. If nothing but force can drag
him before a court of judicature, you recol-
lect what then is the usual practice. For
robbers, too powerful to be reduced to order
by the regular course of law, we master by
war and arms. And there are hardly any
other pretexts for any war between nations,
between kings and their subjects, but inju-
ries, which, being incapable of a legal deci-
sion, are decided by the sword.
M. — Against open enemies, indeed, these
are usually the causes of waging war ; but
we must observe a different process with
kings, whom we are, by the pledge of a
most solemn oath, bound to obey.
B. — Bound, indeed, we are ; but, on the
other hand, they were the first to promise
that they would administer justice with
equity and benevolence.
M. — Such is the fact.
B. — A mutual compact then subsists be-
tween a king and his subjects ?
M. — So it should appear.
B. — Does not he then, who deviates from
conventions, and acts in opposition to com-
pacts, dissolve those compacts and conven-
tions.
M. — He does.
B.— Upon the dissolution then of the tie
which connected the king with his people,
whatever right belonged by agreement to
him who dissolves the compact, is, I pre-
sume, forfeited?
M.— It is.
B. — He also, with whom the agreement
was made, becomes as free as he was before
the stipulation.
M. — He clearly enjoys the same right
and the same liberty.
B. — If a king be guilty of acts tending
to the dissolution of that society, for the
preservation of which he was created, what
do we call him ?
M. — A tyrant, I suppose.
B. — But a tyrant is so far from being en-
titled to any just authority over a people,
that he is the people's open enemy.
M. — Their open enemy, undoubtedly.
THE RIGHTS OF THE CROWN IX SCOTLAND.
281
B. — Grievous and intolerable injuries ren-
der a war with an open enemy just and
necessary.
M. — Undeniably just.
B. — What do you call a war undertaken
against the public enemy of all mankind, —
a tyrant ?
M. — The justest of all wars.
B. — But when war is, for a just carts!,
once proclaimed against an open enemy, not
only the whole people, but also each indivi-
dual, has a right to kill that enemy.
M.— I own it.
B. — What say you of a tyrant, that pub-
lic enemy, with whom all good men are per-
petually at war, — Have not all the indivi-
duals of the whole mass of mankind, indis-
criminately, a right to exercise upon him all
the severities of war ?
M. — I see that almost all nations enter-
tained that opinion. For even her husband's
death is generally applauded in Thebe, his
brother's in Timoleon, and his son's in Cas-
sius. Fulvius too is praised for killing his
son, as he was on his way to Cataline ; and
Brutus for condemning his sons and relations
to the gallows, when he learned their plan
to restore the tyrants. Nay, many states
of Greece voted public rewards and hon-
ours to tyrannicides ; so much did they
think, as was before observed, that with
tyrants every tie of humanity is dissolved.
But why do I collect the assent of single
persons or states, when I can produce the
testimony of almost all the world ? For
who does not severely censure Domitius
Corbulo for having so far neglected the in-
terest of the human race, as not have hurled,
when the deed was easy, Nero from his
throne ? Nor was he censured only by the
Romans, but even by Tiridates, king of the
Persians, who feared nothing less than that
the contagion of the example should even-
tually reach his own person. The minds
even of the worst men, who have become
savage through acts of cruelty, are not so
totally divested of this public hatred to ty-
ranny, that it does not, on some occasions,
burst forth involuntarily, and reduce them,
by the contemplation of truth and honour,
to a state of torpor and stupefaction. When,
upon the assassination of that cruel tyrant
Caius Caligula, his ministers, who were no
less cruel, tumultuously insisted upon the
punishment of the assassins, vociferating oc-
casionally, " Who had killed the Emperor ?"
Valerius Asiaticus, a man of consular dis-
tinction, exclaimed from a conspicuous place,
whence he might be heard and seen, " I wish
that I had killed him." At this expression,
these men, who were destitute of almost all
humanity, foi'bore, as if thunderstruck, all
riotous tumult. For so great is the power
of virtue, that, when its picture, however
imperfectly sketched, is presented to the
mind, its most impetuous ebullitions sub-
side ; the violence of its fury languishes ;
and madness, in spite of all resistance, ac-
knowledges the empire of reason. Nor do
those who now move heaven and earth with
their clamours, harbour other sentiments.
The truth of this observation may be evinced
even by this consideration, that, though they
censure the late events, the same, or similar
transactions, and even of a more atrocious na-
ture, when quoted from ancient history, re-
ceive their approbation and applause, and,
by that circumstance, demonstrate that they
are more swayed by private affections than
by public injuries. But why should we look
for surer witness of what tyrants deserve
than their own conscience ? Hence springs
their perpetual fear of all, and particularly
of good men ; and, hence, they behold the
sword, which they keep always drawn for
others, constantly hanging over their own
necks ; and, by their own hatred to others,
measure the attachment of others to them- |
selves. But good men, on the other hand,
reversing this order, and fearing nothing,
frequently incur danger by estimating the
benevolent disposition of mankind, not by
its vicious nature, but by their own merito-
rious conduct.
B. — You are, then, of opinion, that ty-
rants ought to be ranked among the most
ferocious beasts, and that tyrannic violence
is more against nature than poverty, than
disease, than death, and every other evil
that the decrees of nature have entailed
upon mankind ?
M.— Truly, when I estimate within my-
self the weights of different arguments, I
cannot deny the truth of these positions ;
but, when I reflect on the dangers and in-
conveniences which attend this opinion, my
mind, as if checked at once with a bridle,
fails somehow in mettle, and, bending to-
wards utility from the excessive rectitude of
stoical severity, tails almost into a swoon.
For, if any one be at liberty to kill a tyrant,
mark what a wide field you open to the vfl-
lany of the wicked, to what danger you ex-
pose the good, what licence you allow to the
2p
282
DE JURE REGXI APUD SCOTOS ; OR,
bad, and what disorder you introduce into
every department. For who, after killing a
good, or at least not the worst king, may
not palliate his crime under the specious ap-
pearance of virtue ? Or, if even a good man
should unsuccessfully attempt the assassina-
tion of a detestable prince, or successfully
execute the intended deed, what great con-
fusion must necessarily ensue in every quar-
ter ! While the bad tumultuously express
their indignation at the loss of a leader, the
good will not all approve of the deed ; and
even those who approve will not all defend
the author against a wicked faction ; and the
generality will cloak their own sloth under
the honourable pretext of peace, and rather
calumniate the valour of others than confess
their own cowardice. Assuredly, though
this recollective attention to private interest,
though this mean excuse for deserting the
public cause, and this fear of incurring dan-
ger, should not entirely break, they undoubt-
edly weaken the spirits of most men, and
cause a preference of tranquillity, though
not very certain, to the expectation of un-
certain liberty.
B. — If you attend to the antecedent rea-
sonings, your present apprehensions will be
easily removed. For we remarked that some
nations have, by their free suffrages, sanc-
tioned tyrants, whom, for the lenity of their
administration, we dignify with regal names.
None will, by my advice, offer violence to
any of these, or even of those who have by
force or fraud become sovereigns, if their
government be but tempered by a civic dis-
position of mind. Such, among the Romans,
were Vespasian, Titus, and Pertinax, Alex-
ander among the Greeks, and Hiero at Sy-
racuse ; for, though they obtained the impe-
rial power by violence and arms, yet they
deserved, by their justice and equity, to be
numbered among legitimate kings. Besides,
I here explain, under this head, how far our
power and. duty extend by law, but do not
advise the enforcement of either. Of the
former, a distinct knowledge and clear ex-
planation are sufficient ; of the latter, the
plan requires wisdom, the attempt prudence,
and the execution valour. Though these
preparatives may, in the case of a rash
attempt, be aided or frustrated by times,
persons, places, and other instruments of
action, I shall merit blame for any errors
no more than the physician who properly
describes the various remedies for diseases,
ought to be censured for the folly of another,
who administers them at an improper
time.
M. — One thing seems still wanted to com-
plete this disquisition, and, if you make that
addition, I must acknowledge that your fa-
vours have reached their utmost possible
limit. What I mean to ask is, whether
tyrants ought to be liable to ecclesiastical
censures ?
B. — Whenever you please, you may see
that kind of censure justified in the first
epistle of Paul to the Corinthians, where the
apostle forbids us to have any convivial or
familiar converse with persons notoriously
wicked or flagitious. Were this precept ob-
served among Christians, the wicked must
either repent or perish with hunger, cold,
and nakedness.
M. — That opinion has certainly great
weight ; but yet I know not whether the
people that uses everywhere to pay so much
respect to magistrates, will believe that this
rule comprehends kings.
B. — The ancient ecclesiastical writers, to
a man, certainly understood, in this manner,
Paul's expressions. For, even the emperor
Theodosius was excluded by Ambrose from
the congregation of Christians, and Theodo-
sius obeyed the bishop. Nor, as far as I
know, is any bishop's conduct more highly
extolled by antiquity, nor any emperor's
modesty more loudly applauded. But, as to
the main point, what great difference does
it make, whether you be expelled from the
communion of Christians or be forbid fire
and water ? For, against those who refuse
to obey their orders, all magistrates use, for
their most formidable engine, the latter de-
cree, and all ecclesiastics the former. Now,
the punishment inflicted by both, for a con-
tempt of their authority, is death ; but the
one denounces the destruction of the body,
and the other the destruction of the whole
man. Will not the church, then, which con-
siders much lighter crimes punishable with
death, think death justly due to him whom
alive it excommunicates from the congrega-
tion of the godly, and whom dead it dooms
to the company of devils ? — For the justice
of my country's cause, I think that I have
said enough ; and if still some foreigners
should not be satisfied, I beg that they
would consider how iniquitously they treat
us. For, as there are hi Europe numbers
of great and opulent nations, having each
its own distinct laws, it is arrogance in them
to prescribe to all their own peculiar form
THE RIGHTS OF THE CROWN IN SCOTLAND.
283
of government. The Swiss live in a republic;
the Germans, under the name of empire,
enjoy a legitimate monarchy; some states in
Germany, indeed, are, I hear, subject to a
nobility ; the Venetians have a government
that is a due mixture of all these forms; and
Muscovy is attached to a despotism. We
possess a kingdom that is, indeed, small, but
that has now for above two thousand years
remained free from a foreign yoke. Origi-
nally, we created kings limited by laws, just
to ourselves and to others. These laws,
length of time has proved to be advanta-
geous; as it is by the observance of them,
more than by the force of arms, that the
kingdom still remains unshaken. What in-
justice, then, it is to desire that we should
either repeal or disregard laws, of which we
have, for so many ages, experienced the uti-
lity ! Or, rather, what impudence it is in
men, who can scarcely maintain their own
government, to attempt an alteration in the
policy of another country ? Why should I
mention that our institutions are beneficial,
not only to ourselves, but also to our neigh-
bours ? For what can contribute more to the
maintenance of peace with neighbours than
moderation in kings ? For, in general, it is
through the effervescence of their unruly
passions that unjust wars are rashly under-
taken, wickedly waged, and dishonourably
concluded. Besides, what can be more pre-
judicial to any state than bad laws among its
neighbours, as their contagion uses frequent-
ly to spread wide ? Or why do they molest
us alone, when different laws and institutions
are used by so many surrounding nations,
and the same, entirely, by none ? Or why do
they now at last molest us, when we do not
hazard any novelty, but adhere to our old
system ; when we are not the only, nor the
first people that adopted this practice, and
do not now adopt it tor the first time ? But
some are not pleased with our laws ; per-
haps, also, not with their own. We do not
inquire curiously into other men's institu-
tions ; and, therefore, they should leave us
ours, that have been for so many years ex-
perimentally approved. Do we disturb their
councils ? or do we, in any respect, molest
them ? But, say they, you are seditious. To
this charge I could freely answer, What is
that to them ? If we are disorderly, it is at
our own risk, and to our own loss. Yet I
could enumerate not a few seditions, that
both commonwealths and monarchies found
not prejudicial. But that species of defence
I shall not use. I deny that any nation
was less seditious ; I deny that any was ever
in its seditions more temperate. Many con-
tests have occurred concerning the laws, con-
cerning the right to the crown, concerning
the administration of the government, but
still without danger to the general weal ;
nor was the conflict, as among nations in
general, continued to the ruin of the popu-
lace,— nor from hatred to our princes, but
from a patriotic zeal and a steady attach-
ment to the laws. How often, in our me-
mory, have large armies stood opposed in
battle array, and parted, not only without a
wound, but without a fray — without a re-
proach? How often have private quarrels
been quashed by public utility ? How often
has the report of a public enemy's approach
extinguished domestic broils ? Nor have our
seditions been quieted with more temperance
than good fortune ; since the party that had
justice on its side generally commanded suc-
cess; and, as our civil disputes were con-
ducted with moderation, they were amicably
adjusted on the basis of utility. — These are
the arguments which occur to me at present ;
and they seem calculated for checking the
loquacity of the malevolent, for refuting the
dogmatism of the obstinate, and for satisfying
the doubts of the equitable. The right to
the crown among other nations I did not
think of much consequence to us. Our own
practice I have explained in a few words ;
but yet in more than I intended, or than
the subject required; because this was a
labour which I undertook on your account
only ; and, if I have your approbation, I am
satisfied.
M. — As far as I am concerned, the satis-
faction which you have given is complete ;
and, if I shall be able to give others the
same satisfaction, I shall think myself not
only much benefited by your discourse, but
relieved from a great deal of trouble.
EDINBURGH:
PRINTED BY A. MURRAY, MILXF. S<}l'AKl
Live Music Archive
Librivox Free Audio
Metropolitan Museum
Cleveland Museum of Art
Internet Arcade
Console Living Room
Open Library
American Libraries
TV News
Understanding 9/11